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Snapshot

  • Wherever possible, NSW courts are proceeding with hearings by audio-visual link (‘AVL’). Courts have a discretion as to whether a matter should proceed by AVL. In some circumstances, it may be unfair to a party to proceed in that fashion.
  • Just as it is important to employ persuasive techniques in the physical courtroom, so too is it important in the virtual courtroom: prepare and plan accordingly.
  • Know your AVL technology and prepare your workspace in a way that conveys professionalism, minimises distractions and establishes a connection with the bench.

‘Under ordinary circumstances, I would not remotely contemplate imposing such an unsatisfactory mode of a trial on a party against its will. But these are not ordinary circumstances and we have entered a period in which much that is around us is and is going to continue to be unsatisfactory. I think we must try our best to make this trial work. If it becomes unworkable then it can be adjourned, but we must at least try.’ – Perram J in Capic v Ford Motor Company of Australia [2020] FCA 486 (at [25]).

The advent of the COVID-19 pandemic has fundamentally changed the court landscape for the foreseeable future, potentially forever. In New South Wales, the introduction of the COVID-19 Legislation Amendment (Emergency Measures) Act 2020  means the majority of court appearances now occur in a ‘virtual courtroom’. A virtual courtroom is a digital method of progressing court cases that does not require the participants to attend in person. Parties to court proceedings can access the virtual courtroom using video and telephone conferencing applications, such as Zoom or Skype. For now, Audio-Visual Link (‘AVL’) hearings should be considered ‘the new normal’ and advocates need to adapt their processes accordingly.

The new normal: appearances, evidence & submissions

Section 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (the ‘Act’) permits a court to direct a person to give evidence or make a submission to court by audio link or AVL. Section 22C was introduced into the Act in response to the pandemic, and will have effect until, at least, September 2020. It provides that:

  • an accused person is to appear in bail proceedings by AVL unless the court orders otherwise;
  • a court may direct for an accused person to appear by AVL in ‘physical appearance proceedings’, which includes trials but does not include proceedings on indictment; and
  • a court may direct a witness or legal practitioner representing a party to appear by AVL.

However, not all matters can and should proceed by AVL. Courts in NSW have a discretion under the Act as to whether or not appearances, evidence and submissions should proceed by AVL and the Act sets out circumstances in which a court must not permit a hearing to proceed in that fashion. These circumstances include technological requirements not being met (s 20A) and ‘unfairness to a party’.

Prior to the COVID-19 pandemic, the Court of Appeal identified matters that may be relevant to a court’s assessment of ‘unfairness to a party’ in Antov v Bokan (No 2) [2019] NSWCA 250. They include: the importance of the witness and whether his or her credit is in issue; whether cross-examination of a witness will be rendered less effective to the possible prejudice of the cross-examining party; the nature and extent of documents involved in the hearing of the matter; whether translation of documents was necessary; time differences; and the quality of technology (at [50]).

These considerations are all relevant under the COVID-19 regime. Unfairness may also arise where a matter will be heard entirely by AVL. Judges have observed that broader considerations are also relevant including ensuring the courts’ services continue to operate to facilitate the continuation of the economy and essential services of government, including the administration of justice (see Quince v Quince [2020] NSWSC 326 and Capic v Ford Motor Company of Australia [2020] FCA 486).

Practical considerations for appearing in a virtual court

Be prepared

When preparing for an AVL hearing, consider the following:

  • Have standard directions been adopted by the court or the list judge under the COVID-19 regime? Directions may include parties agreeing to a protocol for the hearing; preparation of electronic court books; and varied requirements for filing and service of evidence, submissions or other material.
  • If an agreed protocol has not been ordered or suggested by the court, is there utility in the parties suggesting to the court that an agreed protocol be adopted in the interests of efficiency?
  • Are there matters that remain in dispute between the parties that can be resolved in the interests of an efficient hearing?
  • Has the court made any recent announcements that affect the matter?
  • Has the court published, or updated, any fact sheets regarding the procedures to be adopted (e.g. the Supreme Court’s ‘The Virtual Courtroom Practitioner’s Fact Sheet’)?
  • Have witnesses been provided with electronic copies of the material they will be questioned about during the hearing?

Get the technology right

The use of new technology, combined with the fact that many lawyers are appearing from their homes, means there can be a plethora of distractions to keep the judge’s mind off the arguments being submitted. Ensuring the technology operates as seamlessly as possible will reduce the possibility of distractions.

A headset can reduce the background noise that can be heard by the judge when addressing the court. A fixed device, such as a desktop computer, laptop or tablet on a stand, will provide a more stable image transmission than a handheld device such a phone. Similarly, to minimise the risk of disconnection, a hard-wired Internet connection is preferable to a wireless connection. If the connection is disrupted, it is possible to join the virtual court through a telephone conference. The details of the telephone conference should be obtained before the court appearance.

On occasion, multiple forms of technology will be required during the appearance, e.g. a video or audio recording may need to be played to a witness. If the case relies on additional technology, ensure that the technology has been tested well in advance of the court date and the procedure to be adopted for its use is discussed between the parties.

Set up your virtual courtroom

Knowing the ins and outs of your AVL application is critical to ensuring the hearing runs as smoothly as possible, and technological glitches are kept to a minimum.

Conduct a test run of your AVL application and Internet connection before your hearing, including with counsel briefed and witnesses to be called. Some courts are offering parties dedicated timeslots during which they can test the AVL application and connection in advance of the hearing. If that opportunity is available, take it!

AVL applications tend to operate more smoothly where there are fewer participants using them. Where possible, and provided that social distancing measures can be observed, it is preferable for counsel, their instructing solicitor and client (if required) to attend the AVL hearing from one room using one AVL connection only. This encourages a more stable connection and also ensures that instructions can be obtained and conveyed quickly. If this arrangement is not possible, ensure that there are fast and secure ways for instructions to pass between the client, instructing solicitor and counsel during the hearing.

The space within which you set up your AVL connection is your bar table. It is therefore important to create a professional environment that minimises distractions and establishes a rapport with the bench:

  • If you are appearing by AVL from home, try and position yourself with a clutter-free space behind you to minimise distractions for the other participants.
  • Opt for a front-lit environment with the device’s camera correctly angled to ensure your face is captured in full.
  • Position the preview window on your AVL application near the camera on your device to engage in as much eye contact with the court as possible.
  • Minimise surrounding noise by closing doors and windows.
  • ‘Mute’ your application when you are not addressing the court to limit background noise.

Appearing in the virtual courtroom

There can be a tendency for advocates to act less formally in the virtual courtroom than they otherwise would in a physical courtroom, particularly where they are appearing from home. When appearing in the virtual courtroom advocates should keep at the forefront of their mind that appropriate court etiquette should always be observed.

In a virtual courtroom, an advocate should announce his or her appearance each time they speak. This reduces confusion about who is making the submission, and also assists with accurate transcription. Always confirm, prior to and on the record, that the court and the opposing side has received any material provided in electronic form. If multiple versions of the material have been exchanged, ensure that all parties are working from the correct version.

The technology used in virtual courts is still new – for the courts and the lawyers alike. It is not uncommon for the connection to be lost for brief periods. If this occurs, an advocate should ask for any missed words to be repeated rather than assuming what was said by ‘filling in the blanks’. The forum of the virtual court means that it is difficult to interrupt when someone is speaking. It is more effective to take note of what points require rebuttal and respond when called upon by the judge to reply.

Conclusion

The advent of the COVID-19 pandemic has meant that the courts have had to move from the physical courtroom to the virtual space. Adapting effectively to this new environment, particularly in respect of the effective use of technology when appearing in the virtual court, will assist advocates to advance the best case for their client.


Brin Anniwell is a barrister in 7 Wentworth Selborne Chambers and Alanna Van der Veen is a PhD candidate at the University of NSW and former Registrar of the Supreme Court of New South Wales.