Justice in the Rear-View Mirror

When faced with a totally new situation, we tend always to attach ourselves to the objects, to the flavor of the most recent past. We look at the present through a rear-view mirror. We march backwards into the future.[1]

Covid-19 has forced the Courts to adopt new ways of working in the lock-down environment.

Before the advent of Covid-19 the Court system in New Zealand operated as it has for decades – a paper-based system based on the courthouse as a physical meeting place, bringing together large numbers of people in a central location. It may be described as the “in person” or “physical presence” model with the “Courthouse as a Place”. The Courthouse has been symbolic of justice delivery, often an imposing temple-like structure with solid emblems representing the majesty of the law and the delivery of just outcomes and firm retribution for the wicked.

The threat posed by Covid-19 to public safety and to the community at large along with a lock-down preventing movement and gatherings has challenged that model. It has required change and that change has had to be implemented quickly so that essential justice services might still be delivered.

In some respects the “Courthouse as a Place” model still prevails. Courtrooms throughout the country have the ability to hear cases remotely using Virtual Meeting Room technology – a significant movement forward from the earlier use of Audio-Visual links (AVL) that have been in place for some years. 220 virtual meeting rooms have been set up across 267 court locations and these are being increased. More collaboration tools are anticipated and the number of virtual private network connections to the Court system have increased from 500 to over 2000.

In addition a form of electronic filing of court papers has been implemented although this is by no means a full-featured e-filing regime.

For a number of reasons it is not possible to conduct a full scale judge alone criminal trial remotely without the consent of the defendant, although under the present law it is possible to conduct a civil hearing using remote technology.

Nevertheless, the speed with which the Ministry and the Judiciary have moved to put these systems in place is admirable. It shows what can be done to implement new communications technologies within the justice system. Although what has been provided is by no means perfect, nor is it as wide ranging as those of us who favour greater use of technology in the justice system would like, it is a start – a proof of concept forced on us by necessity. It is something upon which the Court system could and should build to make justice more available and accessible in the future.

Before Covid-19 forced changes upon the system, there was no disaster plan for the circumstances that have been presented. The Spanish influenza epidemic of the early 20^th century could provide no answers to the problems facing the Courts. There was, in fact, no Plan B. But Plan B – or at least the beginnings of it – are now in place.

The problem is that these innovations, developed as they have been to meet the challenges of delivering justice in a lockdown, are seen as temporary. At the end of the Covid-19 emergency  we in New Zealand will return to “physical presence” model conducted in courthouses throughout the country. It is argued that courthouses serve an important role as the local face of justice for communities.

The suggestion is that the use of technology is not how justice should be delivered in New Zealand. At the moment the problem is that the use of technology has been forced upon us, like it or not, and the solutions arising should not be discarded as no longer fit for purpose or a temporary emergency expedient.

In the overall scheme of things the issue of remote access and videoconferencing is a small part of a much bigger picture that involves the digitization of the Court record. There are already solutions available for this such as that offered by Caselines and about which I was talking back in 2013!

But remote access and digital presence have been dismissed based on the perception that a digital Court system does not – cannot – replicate the level of public and community engagement in the processes of justice and it can’t really replicate the public understanding that flows from a Court house based system for justice. The current use of digital technology has been forced upon the Courts – a stopgap measure; a temporary expedient.

The view is that the “in person” model involving a face to face exchange involving the Judge, counsel and the defendant is important, along with the presence of the Court as a place where the community comes together to provide support for victims and for defendants. It is argued that it is by way of those opportunities for early interventions which can prevent re-offending and subsequent re-engagement with the criminal justice system. I gather that this approach is based on research done by a Professor Ian Lambie and to which Chief Justice referred in her paper to the Criminal Bar Association Conference in 2019.

The concern is that there seems to be an overuse of AVL which is considered lacking in the richness of the information that can be passed between people in a face to face situation. There is unhappiness with the increased use of AVL that the Covid 19 crisis has made necessary but it is recognized it a necessity.

In many respects I consider that the these views about AVL and remote hearings, informed in part by the view of Professor Lambie, are as much cultural as anything else. The majority of the judiciary, myself included, have grown up with the “in presence” model. It is what we are used to. The reality is that more and more people are becoming used to getting their information remotely and are able to make the necessary adjustments in their cognitive and reactive thinking. The human race is known for its ability to adapt and lawyers and judges must be part of this adaptation.

So where does this leave us? There are a number of realities that we have to face. The first is that whether we like it or not we are in the middle of a revolutionary process – and not a political revolution but a revolution that will affect our entire society. We simply will not return to the world as it was in December 2019. All will change – change utterly.

We have to recognize that the post-Covid-19 world will be a different one from that to which we are used. And the realities of the revolution will not become apparent for some considerable time. My own view is that there will be social disruption and dislocation that will continue until at least the end of 2021. Around about then we may see some form of stability – I do not use the word “normalcy” because that suggests a return. There will be no return.

As a result of the circumstances that have been forced upon us we have had to adapt to new methods of communication and information exchange. A whole older generation a few weeks ago thought an email was the cutting edge of technology. Within a very short period of time they have discovered that video calling their friends and family is not some black art for which they need a computer technician.

If there are lawyers and Judges who have made that discovery, they will then likely make the mental jump and ask why on earth the same thing cannot be usefully done in a court. Digital systems and remote hearings may not be the way for all cases but they can be used for many and may provide a more effective, relevant, accessible, versatile justice system than we had before.

Although I know that some of the arguments in favour of the “in person” “Courthouse as a Place” model are based upon elements of the Rule of Law and the importance of full engagement and the symbolic trappings surrounding the administration of Justice, the changes that have been forced upon us demonstrate the fragility and brittleness of those arguments and indeed of the system itself.

But to say that it will be “business as usual” once things settle down, to suggest a full return to the clumsy, archaic, rear view system that has been so much a part of the past ignores the fact that there are effective technological system for the delivery of justice services.

Covid 19 and the lockdown forced the Courts to scramble for solutions to important services that they provide. Why? Because there was no Plan B. The Covid 19 crisis demonstrated that it was unacceptable to argue that “this is the only way because it is the way that we have done it.”

What the Covid 19 crisis has done is forced us to recognize that we must have alternatives. There will be other crises in the future that will require us to move fast and break things. We should always have a Plan B and one that can be deployed seamlessly and easily to whatever threats arise. Remote hearings and greater use of technology form part of that Plan B, have been deployed and can be improved and developed further.

The ball of opportunity has been placed before us. It may be, if we pick it up, there may be a few stumbles and a few drops. Better that than never to have picked up the ball at all.

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[1] McLuhan, M. and Q. Fiore. The Medium is the Massage: An Inventory of Effects. Co-ordinated by J. Agel. (1967). New York, London, Toronto: Bantam Books. pp 74 – 75.

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Courts and Covid 19: Delivering the Rule of Law in a Time of Crisis

“Some men see things as they are and say why? I dream of things that never were and say why not?[1]

Introduction

In this post I consider the effects of the Covid 19 pandemic upon the operation of the Courts and the delivery of Justice services in New Zealand. I argue that Covid 19 has demonstrated the fragility and fallibility of the physical presence “Court as a Place” model of justice services delivery.

I suggest that technology can be deployed to meet the challenges of Covid 19 and presents us with an opportunity to remodel the delivery of Court services so that elements of the Rule of Law and protected along with the physical safety and health of all participants.

Recent legislative changes following the invocation of the Epidemic Preparedness Act 2006 give Judges the power to be innovative in the way in which proceedings may be conducted in this time of crisis. The steps taken now may be an open door to things that previously never were.

The Physical Presence Model

Covid 19 has challenged many of the aspects of and assumptions that we have about the delivery of justice through the Court system. Some of these aspects and assumptions were outlined by the Chief Justice in a paper to the Australasian Supreme and Federal Court Judges’ Conference in Canberra on 20 January 2020.  It was entitled “A Framework for the future; Technology and the Rule of Law”.

She identified elements such as the importance of the Courthouse to the Rule of Law, the court hearing as a public demonstration of the Rule of Law in action and public hearings which exemplify fairness and legality. These three elements are all part of what could be described as the “Court as a Place” or “physical presence” model of the delivery of justice.

COVID 19 challenges this “physical presence” model. The way in which the virus spreads, its apparent virulence, the requirements for reduced opportunities for gatherings and the need for what is referred to as “social isolation,” the restriction on movement of participants based on age means that the physical presence aspect of human interaction in a courtroom in a courthouse render the “Court as a place” model of delivery of justice services becomes untenable. Indeed on 26 March 2020 the unprecedented step was taken to close the District Court and High Court to members of the public whose presence is not required for the conduct of the day’s business in the interests of public safety.

Covid 19 demonstrates the fragility and instability of the Court system as a means of justice delivery, using a “presence” based model. What was thought to be as solid as some of the architectural and symbolic representations of the Court has proven to be at risk because of the nature of a virulent disease and an apparent reluctance in the past to confront the winds of change and take up the opportunities that new technologies present.

Remote participation to the limited extent that audio-visual links allows and the use of electronic books – a digital mirror of the old Eastlight file – are a start but sadly are constrained by an infrastructure that is not fit for purpose.

Public Confidence, Responsiveness and Relevance.

Although the panoply of justice and the “majesty of the law” aspects of public performance may serve some ceremonial or symbolic purpose they are not necessary to the proper and efficient delivery of justice services. Indeed the use of those last two words recognizes that in fact Courts deliver a service to the community and for the purposes of maintain the Rule of Law must continue to do so.

Societal lockdowns, social distancing, limitations on movement, proper hygiene and the need for continued cleanliness means that we must look for other solutions for the delivery of Court services. In re-evaluating what it is that Courts do, the “Court as a Place” model may no longer fit social and societal expectations as a result of the onset of COVID 19.

The Rule of Law in our society is essential. We need to reimagine some of our processes to cope with the “new normal” forced upon us by COVID 19. We need to be innovative and proactive in terms of solutions. We need to look at issues in terms of “how can this work” rather than finding reasons for “why it cannot.”

We need to ensure:

• Public confidence in the system; and
• Associated with that a recognition that Courts are responding effectively to the crisis; and
• That the solutions offered are relevant to present and future circumstances.

Allow me to expand on the last item.

Whether we like or not, new technologies have been having an impact upon our behaviour and upon our attitudes to and expectations of information.  All senior members of the profession and the Judiciary grew up in the pre-digital age. We are digital immigrants.  Those who were born after 1985 are generally referred to as digital natives.  They have known no other communication system than that of the internet and are intimately familiar with and, indeed, dependent upon devices for the receipt of information and communication. Thus, their expectations of the way in which information systems are deployed is quite different from those of who are digital immigrants. 

Their attitude towards the symbolism of the court is that the court is a place where the requirement to be physically present at a certain place for the disposal of court business may be seen as laughable, particularly when there are other systems that are available. One must express some concern that if the court process is not seen as relevant to modern technologies and modern means of communication, where then will lie the respect for the Rule of Law?

The assumptions that underly the elements of public demonstration and public participation are all based upon a view that these are the only ways of achieving objectives.  In the minds of the coming generations, such attitudes could be seen at least as quaint and, at worst, as no longer relevant. 

Therefore, whilst I applaud and support the necessity for the care that must be employed in evaluating the applicability of new technologies to the court and to the justice system, I question whether the importance of the personal participation element is over-rated and of diminishing relevance. The onset of COVID 19 places the issue of relevance of personal presence and the ability to be “present” virtually into sharp focus.

Put simply the requirement for personal presence gives way in the face of the health risks to those who have business before the Court. This has been recognised by the fact that the Courts are closed to members of the public whose presence is not required for the business of the Court. Covid 19 present us with a challenge to continue to deliver Court services – for it must be plain by now that the new reality must recognise that Courts provide a service. In my opinion the use of digital and communications technologies allow us to meet the challenge.

We need to recognise that we must reduce as far as possible physical human interaction in Court processes. Electronic filing using the Internet and Cloud based systems mean that physical documents need not pass over a Registry desk and there is an absence of any need to handle paper or other physical objects that can transmit disease.

E-Filing and E-Bundles as a Solution

All courts must have a record. These comprise the pleadings and associated documents and applications relevant to a case. In the past these records of court files were filed manually in hard copy across the counter. This still occurs although in many cases electronic copies may be sent to the court in PDF format as email attachments. In the Disputes Tribunal in New Zealand there is provision for creating an application using on-line forms. The e-document so created is then printed out and sent to the appropriate Court office, simply because there is not a system that allows for an electronic file (e-file).

There is a solution that allows for the creation of an e-file that is readily accessible by the parties and the Court, that can be integrated into a courts management system, that is not “rule specific” in that it can be used within the context or court rules that allow electronic filing, that does not require major infrastructural changes or expense and that has been tried and proven in other jurisdictions.

The solution that I offer is Caselines which was developed in England. It is a document management and collation system that is Cloud based. A “file” is created by the appropriate Court and the parties, the lawyers, the Court staff and the Judge have access to the file dependent upon permissions.

The file is developed as the parties electronically transmit their pleadings and associated “documents.”  Evidence from a number of sources including multimedia can be filed with the bundle. Because everything is held on the one system, all the parties have access to the evidence at any time. Judges can review and make private annotations before and during the hearing.

Finally, Caselines is designed to assist counsel present their evidence and documents in such a way that as each document is reference it appears on the screens of all participants in Court. It can also allow consel to present or refer to documents from a remote location

In many respects this is a neutral element of the system. It involves the deployment of digital cloud-based systems as a means of replacing the clumsy morass of paper that accompanies Court proceedings and enhances the gathering and production of evidence during the course of a hearing. It is not an aspect that challenges the “presence-based” model of the Court although it could be deployed during the course of an on-line or asynchronous hearing. It is also an element whose deployment, although prompted by Covid 19 would have continued use and relevance in the post Covid 19 environment.

Technology and the Asynchronous Hearing

My next suggestion challenges the synchronous model of the Court hearing.

In our present system the court as a place is central.  It is necessary for all of the parties, their witnesses, their lawyers and the Judge to be available at the same place and at the same time.  Thus, the hearing takes place synchronously and must take place within time allocated or any additional time that may be available. 

Bringing everybody together at the same place and at the same time is one of the difficulties of bringing a case to some form of finality by way of a hearing. Even a hearing where all the parties are remotely present via videolink suffers from this deficiency.

Professor Richard Susskind proposes[2]  in his discussions about Online Courts that there be asynchronous hearings, which means that utilising technology one party may give evidence at a time that is convenient to him or her and for the Judge.  The other party may be present in the virtual sense to hear that evidence.  At a later time, that other party would have a right of reply.  It would mean that the hearing would proceed in fits and starts, a process that is not unknown to current judicial decision-makers and lawyers.  It does involve something of a major cultural shift within a system that has become used to having a court case start at the beginning and carry on through until the end – a synchronous process. 

The advantage of the a-synchronous hearing is that it does not necessarily involve everybody being in the same place at the same time. They can be “virtually” present. It is in this respect that Professor Susskind develops his concept of the court as a service rather the court as a place, because technology can allow the asynchronous hearing to take place, even although the parties are not physically in the presence of one another.

The synchronous hearing has been supported in the past because that is the way court cases have been conducted in the past. The focus of the parties and the tribunal is upon the one matter. The model is akin to that in Alice in Wonderland “Begin at the beginning,” the King said gravely, “and go on till you come to the end: then stop”.[3]

The reality is that the focus is never as tight as that. The parties go home at the end of the day and attend to their affairs. The lawyers deal with other matters in their caseloads. The judge works on a reserved decision in another case. In this respect a certain level of ascynchronicity is already present in a Court case even although the matter may proceed over the course of consecutive days or weeks.

The asynchronous hearing challenges the “presence-based” model in that the hearing may take place over a period of time at the convenience of the parties and their lawyers, dealing with certain issues or evidence on a step by step basis. The use of technology – notably audio-visual links or AVL – means that place does not matter.

It may well be that this model of hearing may be more appropriate for a civil case rather than a criminal one. Yet it is my view that criminal cases could and should be considered for full remote presence hearings with perhaps a facility for private communications between client and counsel.

Objections to this method of proceeding are probably a mixture of cultural practice and habitual training. It is never easy to change a “traditional” way of doing things, but disruption always accompanies technological change. In the same way that many commercial and governmental operations have changed process to adapt to new technologies and the saving and convenience that accompany them, so too the legal profession and the Court system must adapt to remain relevant and credible. There is nothing new about the law’s delays. Hamlet complained of them in 1599.

What is remarkable is that over half a millennium later we have a chance to tackle such problems, yet seem to find reasons for not doing so. The onset of Covid 19 means that remote asynchronous hearings may prove an alternative to the unhealthy, physical presence synchronous model that we presently have.

It is acknowledged that the asynchronous hearing challenges the public administration of justice, the importance of the courthouse as a symbol and the court hearing as a public demonstration of the rule of law – what may be described as the performative aspect. Nevertheless it is incumbent upon the Courts to respond to new challenges, including those involving the health of participants. There is still participation. There is still an opportunity to be heard and for a decision maker to actively participate. It does not require all persons to be present in the same room for a Judge to be seen to pay equal attention to the arguments of each side.

In many respects these presence-based arguments are of a cultural nature that have developed over a period of centuries.  They have developed within the context of the availability, or lack of availability, of different systems of communication.  The oral hearing arose because that was the only way in which a dispute could be litigated as the court system was developing many centuries ago. Times have changed – changed utterly and the Courts must change with them.

The Hearing Technology

The provision of AVL for Court hearings is premised upon a “presence” model and the “court as a place” still prevails. There are shortcomings with the technology in terms of quality, ability to effectively communicate and technological protocols that could be improved.

For all participants to be “present” remotely some other solution that does not envisage or require a central location must be deployed. The necessary documents and other materials would be available via the Cloud-based document system described above. One solution that provides a workable model is Microsoft Teams. Teams at its most basic operates as a messaging app but can act as a remote working and conferencing application that allows all participants to be “present” in the one conference area. The only difference between that and a court is that the participants would be remotely located.

Another solution may be found in the videoconferencing application Zoom which can be used for webinars, conferences and meetings. When one reduces it to its most fundamental element, a court hearing is no more and no less than a meeting, albeit of a rather formal and ritualised nature.

Teams, or indeed any “off the shelf” solution such as Zoom would not have infrastructure requirements other than the Internet. It could be run independently of the Courts network. Teams and Zoom allow for the creation and retention of a record of the hearing including audio, video and screen sharing. It would allow for hearings to take place without putting the participants at risk.

Although the infrastructure of the New Zealand Ministry of Justice was deployed, on 26 March 2020 the guilty plea of Brenton Tarrant, the 15 March 2019 Christchurch terrorist, was taken by video link. Despite the lockdown the Judge and Crown counsel were present in Christchurch. Defence counsel were present by video link in another courtroom. The prisoner was “present” via video link from prison. The video may be found here https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12320188

Using different systems such as Zoom or Teams there was no need for any of the participants to have been at any Courtroom.

The opportunity now presents itself for Judges to take a lead in the current crisis and continue to deliver justice services remotely. The invocation of the provisions of the Economic Preparedness Act 2006 and a very swiftly enacted amendment mean that any administrative difficulties posed by the current Rules of Court may be modified suspended or waived. The power given to Judges do not include the power to vary the requirements of a statute, but the provisions of the Courts (Remote Participation) Act 2010 already allow for remote hearings in many cases.

What we do now could provide a proven working model for the future delivery of Justice services post Covid 19

Conclusion

It is one of the functions of the Rule of Law to provide an effective and accessible means of resolving disputes. Inevitably this involves an exchange of information and in the past, that has been what takes place in a court – an information exchange about a dispute that leads to a resolution by a decision-maker.

Communications technologies and digital communications technologies have evolved to the point that a wide variety of means of communication of information are now available. It seems counter-intuitive for the Justice system to rely on one model when there are a variety of opportunities available.

My proposals do not dispense with the fundamentals that underly the Rule of Law. I realise that in many respects these proposals have significant elements present in Professor Susskind’s Online Court but with wider application than small civil claims.

I would suggest that they enhance the Rule of Law and allow the justice system to appear relevant rather than a quaint way of resolving disputes that the protagonists of Bleak House would recognise and would provide workable solutions for the continued delivery of Courts services in the Covid 19 environment.

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[1] Attributed to Robert F Kennedy paraphrasing George Bernard Shaw Back to Methuselah where the Serpent said “You see things; and you say, ‘Why?’ But I dream things that never were; and I say, ‘Why not?’”.

[2] Richard Susskind Online Courts and the Future of Justice (Oxford, Oxford 2019)

[3] Lewis Carroll “Alice’s Adventure in Wonderland” Chapter 9

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 ;

 

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.

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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.

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[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.