From Theory to Practice – Software Models and Evidence for the Online Court

In the paper below I look at some of the ways in which technology may be applied to proposals for on-line Courts.

The proposals by Richard Susskind the JUSTICE paper and Lord Justice Sir Michael Briggs are based upon the availability of technical solutions to fulfil the promise inherent in the new models for resolving disputes. I emphasise that in using that phrase I envisage, as did Professor Susskind, the dispute resolution model to function within the established Court process rather than as a stand alone alternative to the Court process.

A consideration of the deployment of technology within the Court process first requires a recognition of the way in which technology can reflect or replace current processes. The Online Court proposals that have been put forward suggest significant process change but represent high level strategy. What I consider is a slightly more practical overview of some of the ways in which technology may be deployed. In addition there are issues surrounding the handling of digital evidence which will require consideration.

 

Information Governance and E-Discovery

In May of 2015 I had the pleasure and honour of sharing the stage with Chief Magistrate Judge Elizabeth Laporte at the IQPC 10th Anniversay Information Governance and eDiscovery Summit held at the Waldorf Hilton in London. The session was chaired by Chris Dale of the excellent and continually informative Edisclosure Information Project and addressed the Global Impact of eDiscovery and Information Governance within the context of data collection for cross border cases.

The session was allocated a generous ninety minutes of Conference time, starting shortly after 9:00 pm. This enabled the presenters to make a brief presentation on issues that appeared to be relevant to the general topic. My presentation addressed common themes present in the e-discovery regimes in the APAC region – Australia, Singapore, Hong Kong and New Zealand.

Following the presentations Chris led a discussion that covered a wide range of discovery and disclosure issues. The approach of the US Courts recently exemplified by the case of In the Matter of a Warrant to Search a Certain E-mail Account Controlled and Maintained by Microsoft (District Court SDNY M9-150/13-MJ-2814 29 August 2014 Judge Preska).

One of the common themes emerging from this discussion was that although a local court may purport to exercise “long arm” jurisdiction in the case of content located off-shore, compliance with local data disclosure requirements may come into play, rendering the disclosing party liable to possible sanctions if compliance is not forthcoming.

Another issue that we discussed was that of the need for lawyers to understand and appreciate the way in which technology is used in developing areas of law and in the ediscovery field in particular. In the United States an understanding of technology is a pre-requisite for competence to practice in some areas and as we move further and deeper into the Digital Paradigm, I consider this to be an absolute necessity. Not only lawyers. More and more cases involve aspects of technology either as the subject matter of the dispute or as an aspect of the evidence that is place before the Court. It is essential that Judges have a working knowledge of some of the more common information technologies. This is something of a contentious issue for there is a school of thought that suggests that judicial understanding of technology can be reached per medium of expert evidence. That proposition may have a limited degree of validity in the case of the subtle aspects of the workings of the technology, but should not extend to ocnstant and repetitious explanations of the general way which a packet switching network operates, or the nature of email metadata and how it operates.

The Conference was a valuable one. The sessions were extremely interesting and highly relevant, all of them presented by experts in the field. I am grateful to the organisers for inviting me and to Chris Dale for his excellent Chairmanship of our session and his insightful discussion management.

I prepared a paper for the Conference delegates and a copy is available on Scribd or may be perused here.

Technology for Better Fact Finding

This is a paper that I presented to the 14th International Criminal Law Congress in Melbourne on 11 October 2014. In brief it argues that new information technologies should be employed more widely in the Court system to enhance fact finding by juries and judges. It suggests that what are traditional means of evidence presentation, whilst still relevant, may be enhanced by technology use. In particular the paper questions whether the “confrontation right” requires physical presence and suggests that technology can allow virtual presence. It also points to new developments in 3D rendering and 3D printing which may enhance evidential integrity and improve presentation and consideration of evidence. The paper also questions whether some of the ritual aspects of the trial process enhance or impede proper and effective fact finding, or whether they have relevance to the primary function of the Court at all.

E-Discovery and Asia Legal Big Data

I had the privilege of being invited to take part in the Asia Legal Big Data Symposium held at the Conrad Hotel in Hong Kong on 29 – 30 April 2014, and to share a place on a panel which included Registrar Lung Kim Wan of the Hong Kong High Court, Senior Assistant Registrar Yeong Zee Kin from the Singapore Supreme Court and Stephen Yu from Alix Partners. The focus of the Conference was upon the imminent release of a Practice Direction for the Hong Kong Courts addressing E-Discovery. Although the present Hong Kong Rules are sufficiently wide to deal with E-Discovery in a broad sense, and more focussed approach is proposed.

The panel in which I participated dealt with existing rules and how they work in Singapore and New Zealand, and how the general shape of the Hong Kong direction may appear. Stephen Yu was able to bring valuable technical knowledge into the mix in considering some of the tools and technological solutions that may be utilised in the E-Discovery process.

The Symposium itself was an abundance of riches and as is so often the case, there were times when a difficult choice had to be made between which session to attend. Some of the sessions on data and information management within organisations were very interesting and helpful, emphasising the importance of how proper information management systems and policies can be helpful when a litigation hold is notified. Of particular interest was the way in which such policies may be used to resist spoliation allegations. A proper, principled inmjformation management policy may offer a reasonable explanation for why data is not immediately available or why it is no longer in existence.

It was also a pleasure to meet again Chris Dale from the E-Disclosure Information Project. I first met Chris in Singapore at a Conference a couple of years ago and we have kept in touch. Indeed I owe a debt to Chris for it was he who recommended my participation to the Conference organisers. Chris, as always, played a valuable part of the Hong Kong Conference, sharing his experiences and insights in the E-Discovery field and often was able to point out some of the shortcomings in the way in which E-Discovery Rules are working. One observation that he made was in the context of E-Discovery as a process.

The process starts often before litigation actually begins – when in fact it is contemplated. Parties should start considering their E-Discovery obligations at this time. The various stages of the process (reflected in the EDRM diagram – EDRM means Electronic Discovery Reference Model) continue through the the presentation of documents at Court. I think I should point out that I do not consider the E-Discovery process to be of the “tick the boxes” type of process, nor one which involves a slavish adherence to a set step by step approach. In my view the process is in the form of a journey which carries on throughout the life of the litigation and which involves a number of steps or stages together with an on-going obligation on the part of counsel to meet, confer and co-operate and a requirement by the Court by way of Case Management Conferences to ensure that discovery is reasonable and proportionate. The Court can keep a steady guiding hand on the wheel as the parties continue on the E-Discovery journey. Chris’s criticism of “E-Discovery as a process” was in the context of a slavish adherence to a step by step “plan” and I agree with that. But my view is that a process may have within it a certain flexibility. For example, a staged approach to electronic review may mean that different options become apparent as the review continues, allowing for modifications as review continues.

A copy of my paper delivered to the Symposium may be found below, along with a copy of my presentation.

 

 

Presentation

Technology and the Courts – CTC 2013 – Baltimore Day 3 – Looking Ahead

I had the great honour to join Justice Robert Torres from Guam, Judge Dory Reiling from the Netherlands and Judge Martin Gonzales from Colorado to talk about Bench and Chambers 2023 on the last days of CTC2013 (19 September 2013). The discussion came at the issue from a number of angles. Robert spoke not just about IT but also about developments in neuropsychology and the impact that this may have upon evidence giving. Dory came at the issue from the perspective of technology as a facilitator, and how it can enhance justice and access to justice. Martin considered the issue from the perspective of users of court services in all their many and varied roles. My contribution was speculative based upon the impact of IT upon justice institutions using the properties analysis that I have been developing in earlier posts. My presentation may be found here. The session page may be found here

The other session that I attended was hosted by Jim McMillan of NCSC and was a wrap-up of ideas that had been developed over the Conference. The first point was that technology had to be appropriate to the job that had to be done and had to be within a context of the work required. Importantly, and I have always been an advocate of this, Judges need to get in the forefront of the technological revolution and change must be Judge-led in that it mjust be the Judges who define the tools and the goals of Courts technology use, rather than being told by technocrats to get used to whatever system is imposed.

One idea that was put forward was a development of my suggestion in the E-Discovery session that electronic documents are dynamic. The speaker suggested that they were like Schrodingers Cat in that the document may occupy a different reality depending upon what stage it had reached. Quantum mechanics in the development of a judicial decision was an interesting concept and may  be worth some thought.

One interesting point that was made in the discussion addressed automatic redaction software which may provide an answer to the problems of case reporting where there is sensitive information or parties may not be able to be identified for legal reasons.

It was recognised that perhaps the most immediate issue that needs to be addressed is that of E-Discovery – described as the freight train heading down the track. One of the recognised features is that Courts cannot carry out the E-Discovery process. But is was also recognised, as Daniel Garrie and I emphasised, that the Courts must direct the E-Discovery process by creative use of the conference process, the use of checklists and careful judicial monitoring. Resources are limited, even for clients with deep pockets and, carrying the freight train metaphor forward, the judge must be the train driver.

Jim’s session developed these and a number of other ideas in a good interactive exchange. Valuable and though-provoking.

And so the Conference came to a close. I have never been disappointed with a Courts Technology Conference, and I find there is valuable material to take away, both from a personal and from a teaching perspective. The next CTC is in Minneapolis. DVWP, I will be there.

Technology and the Courts – CTC 2013 – Baltimore Day 2 – Judging E-Discovery Disputes

This is a paper that I prepared to provide some background for a presentation that I shared with Daniel Garrie at Courts Technology Conference 2013 in Baltimore on Wednesday 18 September 2013.

It has been the main focus of my attention during Day 2 of CTC 2013 although I have spent a fascinating morning checking out some of the software solutions demonstrated by vendors in the very large and impressive exhibitors hall. Most of the solutions deal with evidence recording and presentation, AVL systems and case management systems. What I would consider to be trial management solutions for judges seem to be absent which is something of a surprise. There was nothing on show about e-discovery although to be fair, that is of more interest to lawyers than court administrators and judges.

The paper considers aspects of E-Discovery from a judicial perspective. It argues that in the quest to resolve E-Discovery disputes between parties requires an informed and pro-active approach by judges. It suggests that the first objective should be to try and avoid a disputed E-Discovery hearing, utilising proper case management techniques based not only on the requirements of the law but an understanding of how modern technology may be applied to achieve rule-based goals. But overall, judicial involvement at whatever stage in the discovery process involves aspects of judging disputes.

The approach of this paper is largely a generic one and draws on the E-Discovery rules in England, the United States and New Zealand. When one examines these rules it is clear that some common themes become apparent. It is within the context of these themes that the discussion will take place, although from time to time examples from specific jurisdictions will be given. For example, England and New Zealand use a form of menu for counsel to assist them in approaching their discovery obligations. In England this takes the form of a questionnaire. In New Zealand the checklist is incorporated into the High Court Rules. Regardless of the name applied or where it may be located, the common theme is that of a menu approach that will serve as a foundation for an E-Discovery inquiry.

The discussion will first consider the nature of digital information and why it is that E-Discovery poses a paradigmatic difference from what could be termed “traditional” discovery. I then consider some of the ways in which “traditional” discovery is challenged by new information systems and adopts the suggestion that, from a judicial perspective, a holistic approach to the processes that lie behind E-Discovery must be adopted, starting with the obligation by organisations and businesses to have a proper Electronically Stored Information (ESI) policy and the need for a Court to be aware of that when it comes to considering issues such as information destruction. I then move to a consideration of document review and discuss the need for a new mindset on the part of lawyers and judges based on the need for consultation and co-operation between the parties and a recognition that E-Discovery must be based upon what is reasonable and proportional to the case.

I then consider the obligations of the parties within the context of this mindset and then move to an examination of the process, using the New Zealand discovery checklist as an example of the menu based approach to discovery process and obligations.

I then move to discuss the approaches to E-Discovery using technology and discuss the need for proper education in the use and abilities of technology in discovery both on the part of lawyers and the judiciary. I argue for active judicial involvement and discuss the rationale for this approach. Once again the themes of reasonableness and proportionality underpin judicial activity. I argue that judicial activity should not be restricted to the courtroom and in the context of deciding a particular case should be present throughout the entire process. Creative and effective use of E-Discovery case conferences is as important as the resolution of disputes in the courtroom. With proper case conferencing, any “in-court” discovery disputes should be of limited and focussed scope.

I then move to consider the E-Discovery process and give some examples of how judicial involvement may take place within the context of considering document retention policies, examining issues surrounding document custodians and issues surrounding keyword searching within the area of Early Case Assessment. Examples of the use of technology within these stages of the examination will be considered. I close the consideration of how judges get involved with a discussion of some of the matters that may form an agenda for a case management conference.

The preparation of this paper has been greatly aided by my co-presenter Daniel Garrie, a Senior Managing Partner at Law & Forensics, an e-Discovery, cyber security, and electronic forensic consulting firm with offices nationwide. Mr. Garrie is also General Counsel of Pulse Advisory, a venture Development firm.

Mr. Garrie has served as an Electronically Stored Information Liaison, Neutral or  Expert for the L.A. Superior Courts, 2nd Circuit, 3rd Circuit, 7th Circuit, New York Supreme Court, and Delaware Supreme Court. In 2009, the Daily Journal recognized Mr. Garrie as a “Rising Star,” and in 2011 featured Mr. Garrie as a Special Master and thought leader in E-Discovery. In addition, due to his outstanding reputation in the emerging industry of E-Discovery and computer forensics, Mr. Garrie was one of a handful of individuals appointed to the E-Discovery Special Master Pilot Program for the U.S. District Court of Western Pennsylvania  out of a national pool of candidates.

Mr. Garrie is on the editorial board of the Journal of Legal Technology and Risk Management, Journal of Law & Cyber Warfare, and Beijing Law Review.  He has published over 90 articles spanning many topics. His articles have been featured in the University of San Diego Law Review, ABA International Law Journal and Suffolk Law Review. Mr. Garrie also authored the text book E-discovery and Dispute Resolution published by Thomson Reuters in the Summer of 2013 2nd Edition and Software and the Law, fall of 2013.

Mr. Garrie is admitted to practice law in Washington, New York, and New Jersey.

I am also indebted to not inconsiderable assistance from Andrew King of E-Discovery Litigation Solutions, a litigation support firm, specialising in E-Discovery. Andrew very kindly read an earlier draft  of this paper and I am very grateful to him for his suggestions. I must also acknowledge the helpful suggestions made by Chris Dale of the E-Disclosure Information Project. Chris took time out from his very busy schedule to make some very helpful comments about the judicial stance to e-discovery, and I am grateful to him for sharing his expertise.

Technology and Taking Evidence

Issues Surrounding the Courts Remote Participation Act 2010 and s. 103 of the Evidence Act 2006

Introduction

This paper addresses the relationship between the Courts Remote Participation Act 2010 and Section 103 of the Evidence Act 2006.  Whilst it may appear at first glance that the Remote Participation Act is an umbrella code, suggested by recent amendments that make it clear that it does not override the provisions of section 103 of the Evidence Act 2006, it is clear from the way in which is the Act has been developed and the utilisation of technology that this in fact is not the case. In particular the utilisation of technology that has been employed prior to the Courts Remote Participation Act pursuant to section 103 of the Evidence Act 2006 remains available.

This paper will argue that the Remote Participation Act is spatial and operates in real time whereas the provisions of section 103 of the Evidence Act may be both temporal and spatial in their application.  This quality has led to an extended application of section 103 in the case of R v Sadlier.[1]  The Sadlier approach has been questioned in the High Court and restricted in its application by the Court of Appeal.[2]  This article will further argue that the Sadlier approach was perhaps an over enthusiastic adoption of the technology which not only had legal consequences referred to by both the High Court and Court of Appeal but also demonstrated how, in the utilisation of technology in the justice system, one must be extremely careful to consider some of the values that underpin current practices.  Frequently the utilisation of technology, particularly technologies that represent a paradigm shift from former communication systems or methods involve the presence of properties inherent in the technology which challenge some of the principles and values that underlay existing systems.  This paper will argue that the difficulties with demonstrate that in the utilisation of new communications technologies in Courts an analysis of whether or not the properties or qualities of the new technologies to be employed actually challenge the values underpinning existing systems.

This paper will first discuss the provisions and scope of the Courts Remote Participation Act and will then consider the criteria for Remote Participation and reflect upon some of the limitations that are inherent in the legislation and that make its claim to be a code fallacious.

The paper will then continue to consider the provisions of section 103 of the Evidence Act and consider whether or not it enhances or extends the Courts Remote Participation Act and consider how the two interrelate and interact.

Finally the paper will consider the temporal/spatial approach that was developed in Sadlier and recent High Court and Court of Appeal decisions on the pre-recording of testimony and conclude with some observations on some of the reasons why the Sadlier approach was contentious at law  from a technological point of view.

The Scope and Purpose of the Courts Remote Participation Act

The Courts Remote Participation Act 2010 was informed by a number of common law developments that had taken place involving the utilisation of new technologies to enable evidence to be given from a distance utilising video conferencing.  It is not the purpose of this article to track that history although some of it will become relevant in the discussion of section 103 of the Evidence Act.  Some of the common law cases will still be relevant particularly in the case of Remote Participation from overseas and in the processes and procedures that should be adopted and that are fully set out in the case of Deutsche Finance New Zealand Limited v CIR[3].

The first thing to note about the Remote Participation Act is that it addresses the utilisation of audio visual links or AVL in proceedings in New Zealand.  It does not affect existing legislation or rules relating to video conferencing of evidence from overseas.  The High Court rules also deal with the issue of video link or telephone conference evidence (Rule 28.12 High Court Rules 2008).

The purpose of the Remote Participation Act is to enable a greater use of AVL in New Zealand Courts.  The act sets out the criteria for consideration of the utilisation of AVL in court proceedings.  There is a presumption in favour of utilisation of AVL and criminal procedural matters where no evidence is being presented unless the judicial officer is satisfied on his or her own motion or on the objection of any party that the criteria would not be satisfied.

The Act allows for the utilisation of AVL in criminal substantive matters where evidence is being presented on the application of any party or on the judicial officers own motion where the judicial officer considers that the criteria would be satisfied. However AVL must not be used for the appearance of a defendant at trial that determines his or her guilt or innocence unless the defendants consents to that use.[4]

The Remote Participation Act is spatial in nature.  It envisages the presence of a participant at a remote location during the course of proceedings before the Court.  It does not address in any way shape or form the issue of pre-recording of evidence.  It addresses the utilisation of AVL to enable the presence of a participant who is not physically present at the hearing.  And again it must be emphasised that the Remote Participation Act only deals with real time proceedings and does not have a temporal element to it at all. It addresses problems of participant location and gives statutory approval to the utilisation of AVL to overcome such spatial problems.

The Criteria for Remote Participation.

Section 5 sets out the general criteria for allowing the use of audio visual links.  These criteria must be considered when a judicial officer or registrar is making a determination on whether or not to allow the use of AVL for the appearance of any participant in a proceeding.

The general criteria are:

(a)    The nature of the proceeding;

(b)   The availability and the quality of the technology that is to be used;

(c)    The potential impact of the use of the technology on the effect of maintenance of the rights of other parties to the proceedings including –

i.      The ability to assess the credibility of witnesses and the reliability of the evidence presented to the court; and

ii.      The level of contact with other participants; and

(d)   Any other relevant matters.

The utilisation of technology to assess the credibility of witnesses has been a matter that has exercised Judges in video conferencing cases. Credibility of witnesses was an issue that was raised in Ithaca Custodians v Perry Corporation[5] and the nature of the testimony was also a consideration in whether or not video conferencing should be allowed.[6]

The language “potential impact of the use of the technology on the effect of maintenance of the rights of other parties” raises some interesting considerations.  Issues such as assessment of the credibility of witnesses and reliability of evidence in days when communication by Skype and other remote technologies is routine seems to be somewhat redundant, at least to this author.  Highspeed broadband connections and new video conferencing technologies including the availability of high definition TV mean the quality of AVL enables the virtual presence of a witness in a much more “realistic” sense than that anticipated by Harrison J in Aeromotive v Page.[7]  Harrison J’s concerns were about ambiance and witness response under cross examination. These are matters that are easily resolved by high definition video.  We are well used to receiving information by way of a screen and the significance of the provisions of the general criteria set out in section 5(c) may well diminish over time.

Section 6 adds an extra dimension as far as criminal proceedings are concerned. The impact of the use of technology on the maintenance of the right to a fair trial and rights associated with a hearing must be taken into account including the ability of the defendant to:

(i)                 Comprehend the proceedings;

(ii)               To participate effectively in the conduct of his or her defence; and

(iii)             To consult and instruct counsel privately;

(iv)             To access relevant evidence;

The final two matters in s.6 – the examination of witnesses[8] for the prosecution together with the level of contact that the defendant has with the other participants[9] have been effectively mitigated by the way in which AVL is used for bail hearings and the like. The ability of counsel to communicate privately with the client is available prior to and during these hearings.  The only comment that I would make is that a self-represented defendant may well raise some of the matters set out in s 6(a).

Is there really an adverse impression that may arise as the result of AVL?  My tentative answer to that is “no” given, once again, that we are well used to receiving information by way of a screen and screen based information starting with television and latterly by the use of the internet and other screen based communication facilities. I would suggest that any prejudice in this regard must be regarded as minimal.  I make this comment in respect of Judge alone hearings.

The prohibition on substantive hearings absent consent[10] may arise in the context of a jury hearing where the AVL link is with a prison.  Special consideration must of course be given to any prejudicial inferences that might arise in such a setting.  Indeed s 12 makes it clear that a Judge may direct a jury that it should not draw any adverse inference against a party to a proceeding because of the use of AVL and indeed that is a wide direction because it not only addresses problems that may be suffered by an accused appearing remotely but also any witnesses.

The spatial nature of the Remote Participation Act does not resolve all issues relating to remote participation.  That is made clear by s 102A of the Evidence Act 2006 which states that nothing in the Remote Participation Act affects or limits the ability of a party to apply under s103(1) for evidence to be given in an alternative way or a Judge to make directions under that sub-section.

Because of the spatial nature of the Remote Participation Act, the amendment to the Evidence Act was almost inevitable to clarify the operation of s 103 which in any event, given the way in which the common law developed prior to s 103 and the application of section 103 thereafter, has a temporal element to it.  I shall now proceed to consider the provisions of s 103 of the Evidence Act.

Sections 103 and 105 of the Evidence Act 2006

Section 103 codified common law developments in alternative means of giving evidence, particularly by vulnerable witness, starting with the use of screens and, as technology became available, by the use of pre-recorded evidential video for evidence in chief and witness presence in a location remote from the courtroom, but in the Court house.

Section 103 sets out the criteria that must be taken into account before a Judge can make an order under s 105 that evidence of a witness be given an alternative way.  What is envisaged is that the witness would give evidence

a) while in the court room but unable to see the defendant or some other specified person (the utilisation of screens) or

b) from an appropriate place outside the court room either in New Zealand or elsewhere or by a video record made before the hearing of the proceeding.

It is the video record provision under s. 105 1(a) (iii) that gives the s 103 procedure its temporal nature. The statute envisages the pre-recording of evidence-in-chief rather than the contemporaneous giving of that evidence.  It was the addition of cross examination and re-examination as a part of the video record in Sadlier[11] that provided a significant overlay to the concept of evidence giving contemporaneous with a hearing.

The thrust of s 103 is directed primarily towards vulnerable witnesses although there are other criteria that are applicable to other classes of witness.[12]  The directions sought may be made on the grounds of:

(a)    The age or maturity of the witness;

(b)   The physical intellectual physiological or psychiatric impairment of the witness;

(c)    The trauma suffered by the witness;

(d)   The witnesses fear of intimidation;

(e)    The linguistical cultural background or religious beliefs of the witness;

(f)    The nature of the proceeding;

(g)   The nature of the evidence that the witness is expected to give

(h)   The relationship of the witness to any party in the proceeding;

(i)     The absence or likely absence of the witness from New Zealand;

(j)     Any other ground likely to promote the purpose of the Act.

In addition the Judge needs to ensure the fairness of the proceeding and, if it is a criminal proceeding, that there is a fair trial.  The Judge must also take into account the views of the witness, the need to minimise the stress on the witness and, in a criminal proceeding, the need to promote the recovery of a complainant from the alleged offence as well as any other factor relevant to the just determination of the proceeding.

Section 106 sets out specific provisions relating to the integrity of a video record.

The concept of temporally based recording of evidence, including cross-examination and re-examination, is not new.  Section 31 of the Summary Proceedings Act 1957 provides for an order for the taking of evidence of a defence witness at a distance.  This procedure involves the taking of the evidence of a witness by a Judge or a Registrar where it may be desirable or expedient that evidence should be so taken. With the consent of the defendant it is possible for an order to be made for the taking of evidence before a District Court or before a Registrar of the evidence of the informant or any witness of the prosecution if again it is considered desirable or expedient.  The evidence may be tendered at the hearing as if it was given in the course thereof and judicial notice may be taken of the signature of any examining District Court Judge Justice or Community Magistrate or registrar.  Similarly under s 32 an order may be made for the taking of evidence of a person who is about to leave the country.  Desirability or expedience is the test set out in s 32(1).

It is to be noted that these provisions apply only to summary proceedings and have not been specifically repealed by the provisions of s 103 and 105 of the Evidence Act.  Thus the concept of the temporal aspect of evidence is not new but does not appear to have received attention in Sadlier and by the Court of Appeal in M v R.[13]

It is important to recall that in considering the interrelationship of the Remote Participation Act and ss 103 to 105 of the Evidence Act that the Remote Participation Act envisages contemporaneous participation at a hearing.  Sections 103 and 105 allow, in a case of special criteria, for that to happen as well but importantly allow for pre-recording.  Sections 103 and 105 also anticipate the witness may be present in the court room but concealed from the accused – a matter that does not involve AVL or the utilisation of any technology at all.  Similarly the witness may be present in the court house but at a remote location to the court room and presence may be effected by CCTV – once again not a matter that involves true remote participation.[14]

Sadlier, M v R  and the Pre-recording of Evidence. 

The decision of Judge Wade in the case of R v Sadlier was a somewhat dramatic extension of the evidence recording provisions under s 103 and 105.  In some respects the decision seems to suggest a parallel to the pre-trial taking of evidence under the Summary Proceedings Act – a concept which does appear to be available under sections 103 and 105.

The effect of the decision in Sadlier was to allow the pre-recording of the entire evidence of a witness – examination in chief, cross examination and re-examination – which would then be played to the jury at trial, rather than have some of the evidence pre-recorded, such as the examination in chief of the vulnerable witness which would then be followed by the presence of the witness at court albeit in a “remote location” so that cross examination and re-examination could take place. Following the Sadlier decision the Crown began to make numerous applications for the complete pre-recording of evidence much to the concern of the defence bar.

In R v A[15] some concerns were expressed about the jurisdiction to make Sadlier orders which the Judge did not consider because, upon an application of the provisions of s 103 coupled with some observations about trial dynamic, the application was not allowed on the merits. The Court was not satisfied that that any additional benefit would be achieved by pre-recording and was concerned that it might give rise to inefficiencies and difficulties at trial including additional preparation by counsel and the provisions of additional resources by the Court before trial.  At the same time the Court of Appeal had before it the case of M v R.[16]   In that case a defence appeal was allowed and the order directing that the complainant’s cross examination which was to be recorded prior to trial and given a trial by video record was quashed.  In its place an order was made that cross examination was to take place at the time of trial.  Whether a complainant should be cross examined in an alternative way was to be determined by the District Court.

One of the arguments that was advanced in M v R to support cross examination in advance of trial were concerns about delays in getting sex cases and particularly child sex cases to trial quickly.  Notwithstanding priority given by the District Court and the High Court there were months of delay before such trials could begin, causing stress to complainants and the details to be given by child complainants could well be forgotten.

The Court of Appeal observed that there was no problem regarding child complainant’s evidence in chief which was routinely the subject of evidential video interview undertaken as soon as possible after the alleged offending came to light, but under normal circumstances cross examination of the complainant awaited trial.  The Crown Solicitor had formed the view that the Evidence Act 2006 permitted cross examination to be taken in advance of trial if there were good reasons to do so and the Court of Appeal had two issues to consider.  The first was whether or not there was jurisdiction to make pre-trial cross examination orders and if so how that jurisdiction should be exercised.

The Crown’s argument was that the phrase “evidence of a witness” in s 105(1) included evidence given in cross examination or re-examination and the Court of Appeal held that that must be correct.  The alternative way of giving evidence applies not only to the witnesses’ examination in chief but also to the time when the witnesses being cross examined or re-examined.  The Court of Appeal observed there was nothing surprising about that interpretation when it is remembered s 103 and 105 can apply in any proceedings – civil or criminal – and to any witness.[17]    The Court gave the example of the prospective witness in the civil case who was expected to die prior to trial or was going to go out of New Zealand at the time of trial.  It would make good sense that such evidence examination and cross examination could be undertaken by means of a video record prior to trial.

It was argued by the appellants that recorded cross examination was beyond the scope of the provisions of the Evidence Act and replied upon the Law Commission’s report accompanying its proposed Evidence Code.  The Court of Appeal observed that the Law Commission pulled back from any tentative view that pre-trial cross examination of child complainants or other vulnerable witnesses should become routine. 

Another argument that was advanced by the appellants was that a pre-trial cross examination order would require defence counsel to show their hand prior to a Crown opening at trial.  What was important, and was observed by the Court of Appeal, was that a statutory provision applicable only to the trials of indictable crimes could scarcely be used to read down a general evidentiary provision.  Similarly pre-trial cross examination orders would not necessarily infringe fair trial rights and the right to refrain from making a statement under the New Zealand Bill of Rights Act.  However the court did pointedly observe that “we do accept the fair trial rights guaranteed by the Bill of Rights should influence when the jurisdiction to order pre-trial cross examination is exercised.”[18]

The ability of the jury to put questions to a witness under s 101 of the Evidence Act similarly did not override the provisions of ss 103 and 105 because s 101 applied only to indictable trials whereas ss 103 to 105 apply to all proceedings.  Furthermore s 101 did not confer rights upon jurors and it was up to the Judge as to whether or not a jury’s question would be put to a witness.  Even if evidence had been pre-recorded there was nothing to prevent the Judge, on being given the question the jury wanted, to ask to have the witness bought to the court so the question could be put to him or her, although this comment does seem to be rather unusual given the concerns of the Crown relating to speedy trials of sex cases and the difficulties suffered by witnesses of recall over lengthy periods of time.

Thus the Court of Appeal held that courts do have jurisdiction to make pre-trial cross examination orders under the Evidence Act.

Of more significance was the question of how the jurisdiction should be exercised.

The Court of Appeal considered that s 103 provided guidance.  The observation was made that s 103 is subject to s 107 – a specific provision applying only to criminal proceedings in which there is a child complainant – which adds nothing to the discussion because it is effectively in the same terms of s 103(4).  The court observed it was clear that child complainants in criminal proceedings were vulnerable witnesses for a s.105 direction and an alternative way of giving evidence would often be required and thus s 103 was the subject of the courts attention.  The court made the observation that a 105 direction was not restricted to vulnerable witnesses having regard to s 103(3)(i).  There are other subsections which do not apply to vulnerability.  Linguistic, cultural background or religious beliefs,[19] the nature of the evidence that the witnesses expected to give[20]  and the nature of the proceeding[21] do not carry the necessary inference of vulnerability.

The court turned to considerations that were obvious in a criminal context.  The first consideration was that the accused is not required to show his or her hand before the start of a trial although there are some exceptions to that principle.  It is a general rule that it is not lightly to be countermanded and the defendant is generally entitled to hear the prosecution’s opening before taking any step in the trial.  In that respect s 367 of the Crimes Act bears upon the exercise of the powers part of the general need to ensure that there is a fair trial.[22]

The second point was that a Judge should be very slow to order pre-trial cross examination in the absence of clear evidence of full disclosure under the Criminal Disclosure Act 2008 has taken place.  The defence should not have to cross examine a complainant when a defence has not had an opportunity to consider carefully all the relevant information that is in the prosecutors hands.

This gives rise to the interplay of the provisions of the Criminal Disclosure Act – a piece of legislation which in this writer’s observation is one that seems to receive difficulties in compliance on the part of prosecutorial authorities.  The practice of “on-going disclosure” is one that does imply a certain lack of preparation of the case for trial and delays in disclosure seemed to be routine.  On the other hand the defence bar must take some responsibility for its lack of willingness to utilise the provisions of s 30 of the Criminal Disclosure Act which provides for an application to the court for an order for disclosure.  Part of the difficulty underlying compliance with the provisions of the Criminal Disclosure Act lies in the fact that there are no sanctions provided in the legislation and the courts seem to have been slow in developing sanctions for non-compliance.  The power to stay proceedings is an extreme one, particularly in a criminal prosecution, and an interference with the way in which the prosecution may conduct its case by, say, a prohibition of a witness giving evidence where disclosure has not been made is also an extreme one.  The Criminal Disclosure Act is not only an issue in terms of pre-recorded cross examination.  The enactment of the Criminal Procedure Act 2011 and the procedures that are provided in that legislation to streamline criminal procedure are premised upon the prosecution’s ability (and willingness) to make prompt disclosure.

The third matter addressed by the Court of Appeal was balancing the advantages that may benefit a witness in giving evidence early over the disadvantages inherent within the trial process.  Some of the matters that were observed by the Court of Appeal were:

(a)    The increase on the overall use of court resources – a judge in court staff and a court room have to be provided for the taking of the evidence and a trial cross examination which may have taken a day or more has to be played and overall court time would be longer.

(b)   Counsel on both sides end up having to prepare for trial twice and overall legal fees will be higher and costs will be exacerbated if the defence have to retain new counsel for trial if counsel who conducted the cross examination is unavailable.

(c)    Avoidance of delay for complainants means greater delay in resolution for an accused because the rationale for priority of child sex cases would no longer apply.  Defendants would have to wait longer if pre-trial cross examination orders became routine as resources otherwise available for trials would be diverted to the taking of evidence pre-trial.  Trial delay would potentially disadvantage complainants because although the ordeal of giving evidence may be over they will be aware that the trial itself which could well involve other family members or friends remains unresolved.  The court observed “in short therefore the crown solicitor’s stratagem seems a poor solution to the problem of delay in child sex cases”.

The importance of the trial dynamic was also considered.  A very relevant fair trial factor is that a jury would not be present for cross examination and the defence counsel would lose the ability to tailor cross examination depending upon the reaction of a particular jury to it.  The benefits of live examination would be lost because the best view that the jury would get would be on a split screen with the witness on one side and the cross examiner on  another and they would not be able to choose where they looked or assess the accused reaction to the evidence as it was being given.

A Judge would also have to bear in mind the increased difficulty of a jury asking questions which could be done by recalling a witness but that would mean that the witness would end up making two appearances in court rather than one.

Finally the Judge would need to bear in mind that cross examination pre-trial would mean that complainants would end up giving evidence twice in such a situation and the court observed that it was almost inevitable that new matters would come to light shortly before trial.  This is frequently the case with a problem of “on-going disclosure”.

The court concluded as follows:

“It will require a compelling case, we suggest, for the views of the witness or the complainant to overcome the considerations we have mentioned.  We are not to be taken as unsympathetic to the needs and views of the complainants, especially child complainants.  Much could and should be done to improve their lot.  Taking the cross examination in advance is not in itself the answer to the problems.  We accept that maybe part of an answer in rear circumstances, but they will be rare.  We suspect the law commission recognised this too, which is why it pulled back from its original idea of routine pre-trial cross examination in the case of child complainants and elderly witnesses”.[23]

Certainly the issue of pre-recording emphasises the temporal aspect that is present within section 103 and 105.  It is therefore clear that the Remote Participation Act certainly is not a code for the utilisation of technology except in cases of contemporanaeity.  Section 103 does allow for the pre-recording of evidence although in the criminal trial the pre-recording of the whole evidence including cross examination and re-examination should not in any way be considered routine.  Thus the fully temporal aspect of s 103 and 105 as articulated in Sadlier has been limited in its application.

The Impact of New Technologies

But there are other considerations that apply apart from purely legal ones.  Primarily the issue addresses the utilisation of technology in the court process. Technology and especially communications technologies, work on two main layers. The first is the “content” layer – the “what” of the communication. The second is the “technology” layer – the “how” of the communication. We don’t pay too much attention to the how of communications technology – apart from the fact that we have to plug it in and make it work. We are more interested in the content layer. But it is in fact the technology layer that has an impact upon how we process and interact with the content layer. The technology layer has a greater potential to change our approaches and attitudes to information and the way in which we respond to it that we may imagine. These aspects of technology were summed up by McLuhan when he said that the medium is the message. The content was secondary.[24]

Having sketched that aspect, the following issues arise. What happens in Court when a witness is present is that a jury can relate to a person. Although jurors are meant to be unbiased, nevertheless there are often occasions where a jury may empathise with a witness and that plays a part in matters such as assessment of the witness and the weight attributed to testimony. When we receive content via technology, the technological layer allows us to dissociate from the impact or “human-ness” of the content layer. One of the issues that often arises, for example, with computer crime is the fact that the technology allows the perpetrator to dissociate both from the victim and from the consequences of his acts. The technology puts a up wall and although in some respects it enables the *transmission* of content, on the other it inhibits the *communication* of content – all the aspects that we enjoy with face to face communication.

There is another issue. The time between the enactment of the Evidence Act 2006,the Remote Participation Act and the decisions in Sadlier and M v R has all happened very quickly – not in terms of availability of the technology because AVL technology has been available for over 15 years – but in terms of implementation. The Auckland District Court introduced AVL remand hearings in 2010. The decision in Sadlier followed a few months later. That may not be a problem but one must tread with care. What potentially could happen is that behaviourally we will become inured  to this form of evidence presentation which means that we may be more prone to adopt a “soft” approach to the use of technology for the WHOLE trial. Thus one part of the trial may involve evidence taking – the other, evidence evaluation and determination. That could do some serious damage to the confrontation right.

It is a matter of separating out the legal issue from the technology/behaviour issue. The technology is available and should be used if possible. But at the same time we must keep an eye on the real elephant in the room which is the way in which the technology drives us – what McLuhan referred to as the logic of the technology. McLuhan also said that content was the piece of meat for the lazy dog of the mind. We focus on that aspect and overlook the impact of the technology and the way in which it influences our behaviour, our assessment of information and the values that underpin both at our peril.


[1] R v Sadlier (Unreported District Court, Auckland CRI 2010-044-004165, 7 December 2010 Judge Wade)

[2] M(CA335/2011) v R [2011] NZCA 303 CA 335/2011

[3] (2007) 18 PRNZ 710, (2008) 23 NZTC 21, 758 (HC)

[4] Courts Remote Participation Act 2010 s. 9(2)

[5] (2002) 16 PRNZ 773

[6] Other cases decided before the Remote Participation Act include B v Dentists Disciplinary Tribunal [1994] 1 NZLR 95;Ra Ora Stud Ltd v Colquhoun (1997) 11 PRNZ 353; Aeromotive Ltd v Page (2002) 16 PRNZ 329; Erris Promotions Ltd v CIR [2004] 1 NZLR 811  (2003) 21 NZTC 18,330; Churchill Group Holdings Ltd v Aral Property Holdings Ltd HC Auckland CIV-2001-404-2302 26 October 2006; R v Wong HC Auckland CRI-2005-004-15296, 17 May 2006.

[7] (2002) 16 PRNZ 329

[8] Courts Remote Participation Act 2010. s.6(a)(v)

[9] Ibid s.6(b)

[10] Ibid.s. 9(1)(b)

[11] See above n. 1

[12] S.103 was used, for example, in the Deutsche Finance case to enable the giving of evidence from witness located in London – an example of participant evidence

[13] See above n.2

[14] As has been stated the Remote Participation Act clearly contemplates that the witness be in a location other than the court house – the spatial consideration.  As has been noted it is the pre-recording of evidence (in chief) that introduces the temporal element which is the point of practical distinction between the Remote Participation Act and the provisions of the Evidence Act.

[15] Unreported, High Court Auckland CRI 2009-092-3238 14 June 2011 Peters J)

[16] See above n.2

[17] The preservation of testimony pursuant to the provisions of the Summary Proceedings Act (discussed above) was not referred to by the Court

[18] Above n. 2 para 25

[19]S. (103(3)(e)

[20] S.103(3)(g)

[21] S.103(3)(f)

[22] Ibid. Para 34

[23] Ibid. Para 41

[24] McLuhan also tellingly observed in Undertsanding Media that “We shape our tools and thereafter our tools shape us.” This concept of what he also referred to as “the logic of the technology” means that technology can influence and change behaviour and, although we do not recognise it, the values that underlie behaviour.