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Snapshot

  • The fear that the justice system might grind to a halt in the face of COVID-19 and the related public health restrictions such as physical distancing is misplaced.
  • The courts in NSW have readily embraced technology, where appropriate, to continue to deliver the essential service that is justice.
  • The courts must also maintain the essential values of open justice and procedural fairness. Even in a pandemic, there will be some limits to the use of technology.

COVID-19 was declared a pandemic by the World Health Organization on 12 March 2020. The Australian and state governments took various steps to try to slow the transmission of COVID-19, including closing businesses and outdoor areas, restricting group gatherings, encouraging people to work from home and follow ‘social distancing’ – reducing the number of close physical and social contacts a person has.

Courts are essential services

Justice Hamill in Rakielbakhour v DPP [2020] NSWSC 323 captured the moment, and the role of the justice system, when he stated: ‘[w]hile New South Wales moves steadily toward a complete “lock-down” the rule of law, and the courts and lawyers who administer it, are considered to be an essential service’ (at [13]). This is a sentiment that has been expressed across the common law world.

Given the courts have needed to continue operating while also complying with health recommendations, they have undertaken several steps to adapt (see summary in the table below).

These have included more fully using a range of existing technology capabilities in relation to document management and communication. For example, the Federal Court of Australia shifted all filing where practicable to its ‘eLodgment’ system, which allows the initiation of actions online, as well as the filing and serving of documents in existing matters. Likewise, NSW Courts shifted filing to its Online Registry, which allows users to file court forms and access court orders online. NSW also expanded its Online Court to include more civil directions lists and interlocutory hearings. Court registries closed and document management was dealt with online to respond to the need for social distancing.

Similarly, many courts have audio visual links (‘AVL’). Where practicable, hearings have been replaced with audio/video conferencing using either court-specific technology or other platforms such as Microsoft Teams or Cisco WebEx. Directions hearings were dealt with by encouraging cooperation between the parties to agree on case management orders or have the order determined ‘on the papers’. For most jurisdictions, the approach to hearings, and especially trials, has been bespoke with the relevant judge consulting with the parties about the approach to be adopted.

Criminal cases present particular challenges in relation to bail and jury trials. In NSW, the COVID-19 Legislation Amendment Act 2020 (NSW) introduced s 22C to the Evidence (Audio and Audio Visual Links) Act 1998 (NSW). Section 22C requires any accused person in bail-related proceedings to appear by AVL, unless the court directs otherwise. Given jury trials require citizens to sit in close proximity to each other, new jury trials have been postponed across Australia owing to the significant risk of transmission.

Technology: successes and concerns

Technology has been adopted to allow courts to continue functioning during the pandemic. However, courts must still deliver justice in accordance with the rule of law.

Open justice

Former Chief Justice Spigelman explained in John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324 that ‘the principle of open justice is one of the most fundamental aspects of the system of justice in Australia. The conduct of proceedings in public … is an essential quality of an Australian court of justice’. Only limited exceptions exist.

In the Federal Court, a Special Measures Information Note (‘SMIN-1’), in considering how longer hearings could be conducted, stated that consideration must be given to ‘the ability to live stream hearings so as to facilitate open and accessible courts’. Moreover, where judges have had to make decisions on the papers, reasons have been published, as occurred in Kemp v Westpac Banking Corporation [2020] FCA 437.

The Supreme Court of NSW observed that ‘[t]he usual concept of open justice is applicable to the Virtual Courtrooms. However, the Court discourages the wide sharing of Virtual Courtroom contact information in order to minimise interruptions in the Virtual Courtroom environment’. Users of videoconferencing technology, where there are multiple people, would be very familiar with the problem of not just people speaking over each other, lags in questions and responses being heard, but also the infrastructure limits that can arise (see below).

Technology offers the prospect of increasing open justice by making the court’s work available for wider viewing, not just in the courtroom or through the provision of reasons in a written judgment, but through streaming services such as YouTube. For example, the Supreme Court of NSW livestreamed the Queensland floods property damage class action in 2019. Technology can support open justice, provided courts take steps to use technology that has the necessary capacity to support public viewing.

Procedural fairness

Procedural fairness is central to the rule of law and includes receiving notice of a claim and the opportunity to be heard. The High Court in Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 explained that where a party is deprived of the opportunity to present arguments on a vital issue in a case, the person is deprived of a fair trial and a rehearing is required. The same concern would extend to being able to test evidence such as by cross-examination.

The way in which procedural fairness operates in the online environment depends on what is at stake – is it a directions hearing or a final hearing? And is the issue material to the substantive outcome of the proceedings?

In two Federal Court cases, Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486 (Perram J) and ASIC v GetSwift Limited [2020] FCA 504 (Lee J), applications for adjournments in the context of COVID-19 were refused, with the Court finding that a fair trial was possible. While examination of witnesses and the taking of instructions was sub-optimal, technology permitted both trials to occur without unfairness. Both judges had used Microsoft Teams and the like in past cases and found that it allowed them to better focus on the witness than in court and permitted the assessment of credibility.

These cases may be compared with David Quince v Annabelle Quince [2020] NSWSC 326, where an application to vacate the trial succeeded. The case concerned allegations that transfers of shares purportedly executed by the plaintiff were forgeries and that the defendant implemented or procured that fraud. Justice Sackar initially determined that cross-examination of all the witnesses would take place by video-link. The plaintiff applied for the trial to be vacated as a matter of fairness on the basis that ‘the first defendant’s demeanour in answering these allegations will be crucial in assessing her credit, and in properly assessing her denials’. Sackar J observed that ‘[t]here will be many cases where the video link procedure will be more than fair and that issue will clearly have to be determined objectively on a case by case basis …’ (at [19]-[20]). On the facts of this particular case, the Court held that an unfairness would be dealt to the plaintiff if they were not given a full opportunity to ventilate the issues in the conventional way.

Public confidence in the administration of justice

The court hearing is a public demonstration of the rule of law – impartiality, procedures for fairness, public argument and the delivering of reasons. Justice must be seen to be done to ensure public confidence in the administration of justice.

A recent English and Wales Court of Protection case conducted using Skype for Business demonstrates the potential pitfalls of a remote hearing on lay participants’ experience of justice. In A Clinical Commissioning Group v AF & Ors [2020] EWCOP 16, the Court considered whether an elderly man’s wishes to reject life-sustaining medical treatment would be granted. As it was a serious medical case, the man’s daughter was permitted to give witness testimony. After the hearing, which included several witness examinations, the judge and lawyers felt it had proceeded relatively well. However, the daughter’s view was that the intrusion of everyday life – cats that meowed, dogs that barked, doorbells that were rung – broke the formality and solemnity of a court. Discussions between lawyers and the judge as they attempted to make the technology work seemed ‘pally’ rather than professional or independent (Celia Kitzinger, ‘Remote justice: a family perspective’, Transparency Project Blog, 29 March 2020 (www.transparencyproject.org.uk/remote-justice-a-family-perspective/)). The circumstances of the remote hearing meant the daughter was reportedly left feeling she may have missed out on her opportunity to influence the Court. There is no suggestion that the outcome was necessarily wrong – the judge decided the case after considering 900 pages of evidence and hearing from 11 witnesses, but the concern is the detraction of the ordinary gravitas of a court hearing and the consequent perception of the loss of fairness in the hearing from lay participants.

Access to technology & telecommunications infrastructure

Access to the necessary infrastructure, including both the chosen software (e.g. Skype, Zoom, Microsoft Teams, WebEx) and sufficient internet bandwidth, is crucial to not just a positive online experience but to ensuring fairness. While the infrastructure may be readily accessible in the CBD, it also needs to be available in suburban and regional areas, where lawyers, parties and witnesses are located, if courts are to be accessible. The problem was highlighted in R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 11) [2020] NSWSC 382 where the parties had difficulty in maintaining a connection to the virtual courtroom; not as a result of the court’s system, but as a consequence of their own internet connections or devices. In the circumstances of COVID-19, with many people required to work from home, the problem is likely exacerbated. However, it demonstrates that online courts require not just technology for the court, but also the necessary infrastructure for its users to be available.

Conclusion

The dispensing of justice is an essential service, and technology, particularly in relation to hearings, has allowed it to continue. However, it is also crucial that the core characteristic of courts and the rule of law – open justice and procedural fairness – are preserved and do not also become victims of the pandemic. There may be cases where an online hearing works well and others where it is not in the interests of justice. Equally, those with phobias about technology cannot be allowed to hide behind a veil of concern about fairness. The approach to technology and hearings must take account of the objective needs of the particular matter.

Moving forward, the response to the pandemic provides an opportunity to assess when technology functions well and can save cost and prevent delay, while still achieving justice. It also allows for a critical evaluation of where the use of technology can be problematic. Courts need to engage with all users to obtain feedback on their experiences so as to improve technology offerings and to provide guidance on when technology is appropriate to employ.

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Legg, Michael

Prof Michael Legg is Director of the Future of Law and Innovation in the Profession (FLIP) Research Stream at UNSW Law. Anthony Song is a UNSW law student and FLIP Stream research assistant.