Memory Illusions and Cybernannies

Over the last week I read a couple of very interesting books. One was Dr Julia Shaw’s The Memory Illusion. Dr. Shaw describes herself as a “memory hacker” and has a You Tube presence where she explains a number of the issues that arise in her book.

The other book was The Cyber Effect by Dr Mary Aiken who reminds us on a number of occasions in every chapter that she is a trained cyberpsychologist and cyberbehavioural specialist and who was a consultant for CSI-Cyber which, having watched a few episodes, I abandoned. Regrettably I don’t see that qualification as a recommendation, but that is a subjective view and I put it to one side.

Both books were fascinating. Julia Shaw’s book in my view should be required reading for lawyers and judges. We place a considerable amount of emphasis upon memory assisted by the way in which a witness presents him or herself -what we call demeanour. Demeanour has been well and truly discredited by Robert Fisher QC in an article entitled “The Demeanour Fallacy” [2014] NZ Law Review 575. The issue has also been covered by  Chris Gallavin in a piece entitled “Demeanour Evidence as the backbone of the adversarial process” Lawtalk Issue 834 14 March 2014 http://www.lawsociety.org.nz/lawtalk/issue-837/demeanour-evidence-as-the-backbone-of-the-adversarial-process

A careful reading of The Memory Illusion is rewarding although worrisome. The chapter on false memories, evidence and the way in which investigators may conclude that “where there is smoke there is fire” along with suggestive interviewing techniques is quite disturbing and horrifying at times.

But the book is more than that, although the chapter on false memories, particularly the discussions about memory retrieval techniques, was very interesting. The book examines the nature of memory and how memories develop and shift over time, often in a deceptive way. The book also emphasises how the power of suggestion can influence memory. What does this mean – that everyone is a liar to some degree? Of course not. A liar is a person who tells a falsehood knowing it to be false. Slippery memory, as Sir Edward Coke described it, means that what we are saying we believe to be true even although, objectively, it is not.

A skilful cross-examiner knows how to work on memory and highlight its fallibility. If the lawyer can get the witness in a criminal trial to acknowledge that he or she cannot be sure, the battle is pretty well won. But even the most skilful cross-examiner will benefit from a reading of The Memory Illusion. It will add a number of additional arrows to the forensic armoury. For me the book emphasises the risks of determining criminal liability on memory or recalled facts alone. A healthy amount of scepticism and a reluctance to take an account simply and uncritically at face value is a lesson I draw from the book.

The Cyber Effect is about how technology is changing human behaviour. Although Dr Aiken starts out by stating the advantages of the Internet and new communications technologies, I fear that within a few pages the problems start with the suggestion that cyberspace is an actual place. Although Dr Aiken answers unequivocally in the affirmative it clearly is not. I am not sure that it would be helpful to try and define cyberspace – it is many things to many people. The term was coined by William Gibson in his astonishingly insightful Neuromancer and in subsequent books Gibson imagines the network (I use the term generically) as a place. But it isn’t. The Internet is no more and no less than a transport system to which a number of platforms and applications have been bolted. Its purpose –  Communication. But it is communication plus interactivity and it is that upon which Aiken relies to support her argument. If that gives rise to a “place” then may I congratulate her imagination. The printing press – a form of mechanised writing that revolutionised intellectual activity in Early-modern Europe – didn’t create a new “place”. It enabled alternative means of communication. The Printing Press was the first Information Technology. And it was roundly criticised as well.

Although the book purports to explain how new technologies influence human behaviour it doesn’t really offer a convincing argument. I have often quoted the phrase attributed to McLuhan – we shape our tools and thereafter our tools shape us – and I was hoping for a rational expansion of that theory. It was not to be. Instead it was a collection of horror stories about how people and technology have had problems. And so we get stories of kids with technology, the problems of cyberbullying, the issues of on-line relationships, the misnamed Deep Web when she really means the Dark Web – all the familiar tales attributing all sorts of bizarre behaviours to technology – which is correct – and suggesting that this could become the norm.

What Dr Aiken fails to see is that by the time we recognise the problems with the technology it is too late. I assume that Dr Aiken is a Digital Immigrant, and she certainly espouses the cause that our established values are slipping away in the face of an unrelenting onslaught of cyber-bad stuff. But as I say, the changes have already taken place. By the end of the book she makes her position clear (although she misquotes the comments Robert Bolt attributed to Thomas More in A Man for All Seasons which the historical More would never have said). She is pro-social order in cyberspace, even if that means governance or regulation and she makes no apology for that.

Dr Aiken is free to hold her position and to advocate it and she argues her case well in her book. But it is all a bit unrelenting, all a bit tiresome these tales of Internet woe. It is clear that if Dr Aiken had her way the very qualities that distinguish the Digital Paradigm from what has gone before, including continuous disruptive and transformative change and permissionless innovation, will be hobbled and restricted in a Nanny Net.

For another review of The Cyber Effect see here

The Confrontation Right and Technology

The case of New Mexico v Thomas came across my desk this morning. The  blog post that alterted me to it was primarily about judicial use of social media but the first sentence caught my eye. It stated that an appeal against conviction in a murder case was overturned because an expert witness for the prosecution testified via Skype, which the Court held violated the Confrontation Clause of the United States Constitution.

The “confrontation clause” requires the physical presence of witnesses at a criminal trial. There was a proposal to amend the Federal Rules of Criminal Procedure in 2004, allowing unavailable witnesses to testify via two-way video. Justice Scalia said:

I cannot comprehend how one-way transmission . . . becomes transformed into full-fledged confrontation when reciprocal transmission is added. As we made clear in Craig, [497 U.S.] at 846-47, a purpose of the Confrontation Clause is ordinarily to compel accusers to make their accusations in the defendant’s presence—which is not equivalent to making them in a room that contains a television set beaming electrons that portray the defendant’s image. Virtual  confrontation might be sufficient to protect virtual constitutional rights; I doubt whether it is sufficient to protect real ones.

In the United States it is very difficult in light of the strength of the confrontation clause to have a witness testify via video-link. Technology can provide the necessary ability to “confront” via video link. Many of the obstructions to the proper evaluation of information needed by a fact-finder to arrive at a conclusion arise from practices rooted in the ritualised oral procedures of evidence giving that have surrounded the criminal jury trial. These procedures were perfectly satisfactory in an era where communication imperatives and an absence of the range of communication technologies present today mandated the “physical presence participation” model of the criminal jury trial.

It is my argument that the essential elements of the confrontation right may be maintained through the use of information technologies whilst dispensing with the inconveniences and costs of the “physical presence participation” model.

The justification for witnesses to be physically present in the Court for examination is no longer relevant when “virtual presence” by means of a high definition screen can enable a better and clearer view of a witness than is possible from a jury box across a courtroom to the witness stand. The questionable value of demeanour suggests that this justification for presence is at best arguable and in reality is a fallacy.[1] One could go so far as to suggest that video-conferencing technology may make it possible for witnesses to give evidence from remote locations and for the accused to be “virtually present” without compromising rights. “Visual presence” may replace “physical presence.”

Audio-visual (or videoconferencing) technology dispenses with the need for physical presence because it maintains the essential aspects of the confrontation right. The accused is able to hear the evidence that is given. There is the ability for cross examination. The availability of high definition screens means that there will be little if any image distortion for the accused or other participants located elsewhere.

In addition the provision of technology should pose little difficulty. There are a number of “video-conference” technologies available. At the moment New Zealand Courts use a dedicated Voice\Video over IP system that is effective but expensive and is not widely available.

In late May 2014 I participated in a test of video-conferencing software and electronic bundle software in a mock international trial.[2] All the participants were scattered – Auckland, New Zealand, Washington DC, London, Croydon and Edinburgh. The communications software used was Microsoft Lync  – now Skype for Business – and the Electronic Bundle was provided by Caselines, a product of Netmaster Solutions, an English company. The trial rapidly established the feasibility of the software tools, both of which are reasonably priced and are browser based which meant that no additional software needed to be installed on a user’s computer. In addition, the software meant that place did not matter – a classic example of the application of spatial technologies. From a technological and practical point of view, a remote hearing is possible, practical and feasible.

The use of video-conferencing or audio-visual technology is relatively common throughout the English and Commonwealth Courts. Section 32 of the Criminal Justice Act 1988 (UK) allows evidence to be given by a witness (other than the accused) by way of “live television link.” Leave is required if the witness is overseas. There is provision for pre-recorded testimony pursuant to section 27 of the Youth Justice and Criminal Evidence Act 1999. Rule 32 of the Civil Procedure Rules in England allow for evidence in civil proceedings to be given via video-link.[3]

The criminal Code of Canada contains provisions governing the reception of evidence by video and audio. The Canada Evidence Act applies to non-criminal matters under Federal law and if provincial statutes are silent, federal law is adopted. Individual Courts may have rules relating to the reception of evidence.[4] Australian Courts have deployed video-conferencing for court proceedings and the taking of evidence and for pre-trial matters – not unsurprising given the vast distances in that country.

However, despite what is clearly widespread use of video-conferencing in a number of jurisdictions there is still hesitancy, even among legislators. In the debate about the introduction of the Courts Remote Participation Act 2010 objections to AVL use had two major themes. The first, as may be expected, related to the confrontation right and the “physical presence” rule implied by s.25(e) of the New Zealand Bill of Rights Act 1990. The other related to some of the technological shortcomings surrounding the use of AVL. There was little opposition to AVL being used for procedural hearings but there was considerable objection to its use for a substantive hearing.

One suggestion was that without physical presence an accused could not keep tabs on the “cozy” conversation between counsel, the inattentive or snoozing juror or, worse still, the sleeping judge or that the camera may not be playing on the key participants at a vital stage. Such a suggestion ignores split screen and multi camera technology, along with voice activated cameras and swivelling cameras. The days of a single static camera are long gone. At no stage in the debate did there seem to be a consideration of the advantages or shortcomings of the use of technology to fulfil the purposes of the Bill of Rights Act or the Evidence Act. Rather, the visceral reaction was based upon the outrageous suggestion that a trial could take place other than in the physical presence of the accused.[5] A proper and informed debate on the use of technology in the Court system would have been preferable..

[1] Robert Fisher QC “The Demeanour Fallacy” [2014] NZ Law Review 575 at 582. See also Chris Gallavin “Demeanour Evidence as the backbone of the adversarial process” Lawtalk Issue 834 14 March 2014 http://www.lawsociety.org.nz/lawtalk/issue-837/demeanour-evidence-as-the-backbone-of-the-adversarial-process (last accessed 20 June 2014); Professor Ian R Coyle “How Do Decision Makers Decide When Witnesses Are Telling The Truth And What Can Be Done To Improve Their Accuracy In Making Assessments Of Witness Credibility?” Report to the Criminal Lawyers Association of Australia and New Zealand” 3 April 2013 p. 8; On the subject of demeanour generally see Professor Coyles extensive bibliography. See also Lindsley Smith” Juror Assessment of Veracity, Deception, and Credibility,” http://www.uark.edu/depts/comminfo/CLR/smith1.html

[2] For reports see http://www.lawgazette.co.uk/5041446.article?utm_source=dispatch&utm_medium=email&utm_campaign=GAZ020614   http://www.independent.co.uk/news/uk/home-news/the-etrials-of-the-future-judges-take-part-in-pilot-that-could-revolutionise-court-system-9474101.html and for an interview with Judge Simon Brown QC on the effectiveness of the trial see https://www.youtube.com/watch?v=7r8RUwORvkc&feature=youtu.be

[3] Information on video-conferencing in the English Courts can be found here https://www.justice.gov.uk/courts/video-conferences

[4] For example the Court in Ontario may order that a hearing be conducted in whole or in part by means of a telephone conference call, video-conference or any other form of electronic communication, and “The Court may give directions to facilitate the conduct of a hearing by the use of any electronic or digital means of communication or storage or retrieval of information, or any other technology it considers appropriate.”

[5] For the debates see  Hansard Vol 664, p. 12266 http://www.parliament.nz/en-nz/pb/debates/debates/49HansD_20100629_00001172/courts-remote-participation-bill-%E2%80%94-second-reading ; Hansard 30 June 2010 Vol 664 p. 12349 http://www.parliament.nz/en-nz/pb/debates/debates/49HansD_20100630_00001105/courts-remote-participation-bill-%E2%80%94-in-committee ;

 

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.

 

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.

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.