By Charis Chiu, Yijun Cui and Rachel Wang
INTRODUCTION
Given that justice delayed is justice denied, many jurisdictions have turned to virtual courts as a response to the COVID-19 pandemic. The ‘conceptual idea of a judicial forum that has no physical presence but still provides the same justice services available in courtrooms...assessed online through videoconferencing and teleconferencing’[1] was forced into realisation. In particular, a contested issue is that of virtual cross-examination, with courts having to balance the need to facilitate a just resolution of disputes as quickly, inexpensively, and efficiently as possible[2] with considerations of fairness in the use of a virtual (and the only viable) solution.[3] Moreover, remote cross-examination may potentially shift the perspective towards the cross-examination of vulnerable witnesses such as children and victims of sexual assault. Critically engaging with COVID-era cases, this blog will explore the present challenges and opportunities surrounding virtual courts as well as its enduring implications on the legal sphere.
CROSS-EXAMINATION
Central to the common law adversarial system of trial[4] and ‘basic to any notion of a fair trial’ is the right to cross-examine a witness.[5] A primary concern is that the use of virtual courts renders cross-examination less effective given the loss of the physicality of the traditional courtroom and the reduced ability to assess witness demeanour in a nuanced manner.[6] As Spender J held in Campaign Master (UK) Ltd v Forty Two International Pty Ltd, the requirement to give evidence in the solemn atmosphere of a courtroom in the presence of a judge and a cross-examining counsel “enhances the prospect that the witness will remain conscious of the nature and solemnity of the occasion”,[7] whilst providing the Court with a more satisfactory environment in which to assess the nature, quality and reliability of responses by a witness. Whilst the English position found in McGlinn v Waltham Contractors Ltd and others held that video link poses ‘no real prejudice to the defendants... [even when the defendant’s] credibility was directly in issue,’ the Australian position had historically been more guarded. The trend of authority appears to emphasise the need for a persuasive case to be made out to use a video link to take evidence, particularly to impose it on an unwilling cross-examining party, rather than the reverse.[8] How have Courts reconciled this position with the demands necessitated by the pandemic?
The first question which arises is the role that demeanor plays in the modern context. The inability to assess witness demeanour is no longer considered a factor that disadvantages appellate judges against trial judges.[9] Rather, it is increasingly recognised that drawing conclusions from a witness’s demeanour is unreliable and dangerous.[10] However, Sackar J concedes in David Quince v Annabelle Quince and Anor that ‘where there is not an abundance of corroborative or other material, demeanour, rightly or wrongly, may well play a very significant part in the determination… on a Briginshaw or s 140 [of the Evidence Act 1995 (Cth)] basis.’ Examining section 5B(2)(c) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) (‘Evidence Act’) which prevents the Court from ordering evidence to be taken in a particular way if the direction is ‘unfair to any party to the proceeding,’ Sackar J held it was antithetical to the administration of justice for evidence to be taken remotely, without the plaintiff given a full opportunity to cross-examine the defendant in a conventional setting.
Given the context of the COVID-19 pandemic, section 5B(3) of the Evidence Act which requires that Courts not permit evidence by audio visual link unless ‘it is in the interests of the administration of justice’ takes on another meaning.[11] When does postponing a trial pose greater impacts on the administration of justice than potentially unsatisfactory virtual trials? Although rejecting the submission that s 5B of the Evidence Act should not have its usual operation during the pandemic, Sackar J acknowledged that there will be a substantial number of cases where video link procedure will be more than fair and that issue will clearly have to be determined objectively on a case by case basis. Remote cross-examination was, for instance, not a significant concern for Perram J in Capic v Ford Motor Company of Australia Limited (Adjournment) (‘Capic’) pointing out that the particular class action on allegedly defective gear boxes was ‘not a fraud trial’ and therefore the issue of coaching a witness is insignificant. The Court concluded that under ordinary circumstances, he would not remotely contemplate imposing such an unsatisfactory mode of a trial on a party against its will. However, these are not ordinary circumstances. In Capic, the Court’s emphasis that postponing a trial could result in further loss or costs, inconsistent with the overarching principles of just and quick resolution of matters, suggests that the Court is willing to embrace virtual courts and deal with difficulties as they arise.
Fortunately, the present climate has led to the widespread use and enhancement of platforms such as Microsoft Teams and Zoom, facilitating more clear and effective audio-visual witness examinations than historically. As Perram J commented in Capic, the close proximity of video means his perception of the witness’ facial expressions via a virtual platform is much greater. However, the increased impact of facial characteristics on virtual proceedings could introduce issues of whether they can adversely influence the evaluation of evidence and the sentence of defendants.[12] Operating video-conferencing software, moreover, may require barristers to adapt their methods of cross-examination in terms of physical presence, volume and body language.[13] For example, instead of getting louder, which may appear petulant over video, appropriate voice modulation can be used to convey confidence to the witness and prolong their attention in long remote hearings. Although pacing around the podium may not be possible, varying physical proximity to the camera can be used for emphasis.[14] Lawyers should especially hone into inputs such as voice, by considering whether the witness hesitates before answering or if the voice becomes more high-pitched.[15] Whilst barristers do not have to sacrifice non-verbal methods, they must adapt their methods of witness cross-examination within a remote setting.
POLICY CHANGES
The vulnerable witness provisions under pt IAD of the Crimes Act 1914 (Cth)[16] currently limits the right to confrontation in regards to child witnesses and sexual assault victims. An example can be found in prohibiting the cross-examination of vulnerable persons by unrepresented defendants in pt IAD division 3. In fact, proposals have been made to extend such laws to the Family Law Act 1975 (Cth) (‘FLA’)[17] in protecting victims of family and domestic violence from being subject to cross-examination by self-represented perpetrators and to provide assistance with the self-representing victim’s cross-examination of the perpetrator. Currently, the FLA does not provide protection against direct cross-examination by perpetrators. Cross-examination by an alleged abuser can impose significant impacts on complainants, who may choose to settle their matters on suboptimal terms to avoid being cross-examined or having to cross-examine a violent ex-partner. This experience may lead to re-traumatisation, which can compromise the quality of evidence provided to the court, thereby undermining its ability to make safe and effective orders.[18] These protection provisions are particularly essential within the context of videoconferencing, where the ‘one-on-one’ nature of the virtual cross-examination may appear more intimidating and threatening to less experienced witnesses. Virtual cross-examination may also provide further protection for vulnerable witnesses, in preventing lawyers from intimidating the witness using physical proximity or indulging in unprofessional and unproductive styles of cross-examination.[19]
The trial of virtual courts necessitated during the COVID-19 pandemic ought to catalyse the need for long-term change. In particular, the protection of vulnerable witnesses should be extended. Whilst NSW and the majority of other Australian states and territories currently grants children who are victims of sexual assault prior to the trial the ability to pre-record evidence prior to trial,[20] the implementation of the COVID-19 Legislation Amendment (Emergency Measures) Bill 2020 (Emergency Legislation) (NSW) extends the categories of witnesses who are permitted to do this.[21] This legislative change therefore affords a greater degree of protection for children who have been subject to sexual assault and directly reduces the trauma and abuse they would otherwise be required to endure in a physical court setting.[22] Parliament could extend such legislative changes to cover adult victims of sexual assault, and do so permanently.[23] In the Northern Territory, The Northern Territory Evidence and Other Legislation Bill 2019 (NT) (‘Northern Territory Evidence Bill’)[24] strengthened the protections for vulnerable witnesses in sexual and domestic violence proceedings, clarifying the general power of courts to order the use of video conferencing and creating a statutory presumption that evidence from vulnerable witnesses is to be given via video conferencing.[25] As articulated in its Explanatory Memoranda, the Northern Territory Evidence Bill thus ‘introduces a new model of cross-examination of vulnerable witnesses by unrepresented defendants.’[26] Similar legislation ought to be adopted in New South Wales to uphold the highest standards of protection for vulnerable witnesses. The insight into the functionality of virtual trials offered during COVID-19 and the Court’s greater willingness to facilitate remote cross-examination could therefore generate a nationwide shift towards presuming that evidence from vulnerable witnesses is to be given virtually.
CONCLUSION
Virtual courts reshape the manner in which those within the Court must conduct themselves, presenting both challenges and opportunities for the legal profession. In present times of crisis, it has increased the efficacy with which justice is administered. Looking forward, the use of virtual courts calls for long-term legislative change to maximise the application of this legal innovation to best assist the legal sphere and vulnerable witnesses.
Endnotes
[1] Keith Kaplan, ‘Will Virtual Courts Create Courthouse Relics?’, (2013), 52(2), The Judges’ Journal, 32.
[2] Federal Court of Australia Act 1976 (Cth) s 37M(1).
[3] Capic v Ford Motor Company of Australia Ltd (Adjournment) [2020] FCA 486 [6].
[4] Lee v The Queen (1998) 195 CLR 594 [32].
[5] R v Hughes [1986] 2 NZLR 129 [149]
[6] Vincent Denault and Miles Patterson, ‘Justice and Nonverbal Communication in a Post-pandemic World: An Evidence-Based Commentary and Cautionary Statement for Lawyers and Judges (2020) Journal of Nonverbal Behavior DOI: 10.1007/s10919-020-00339-x (‘Justice and Nonverbal Communication in a Post-pandemic World’); See R. v. NS [2012] 3 SCR 726 743-744: ‘Non-verbal communication can provide the cross-examiner with valuable insights that may uncover uncertainty or deception, and assist in getting at the truth’.
[7] Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No. 3) [2009] FCA 1306 [78] (‘Campaign Master’)
[8] See Campaign Masters (n 7) [78]. Buchanon J held that ‘Notwithstanding the increased availability and use of video link technology, in my view, a case must be made out for the use of video link evidence if it is opposed by an affected party.’ See also Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia Pty Ltd (2001) 53 NSWLR 1 [1]-[3] (Palmer J).
[9] SS (Sri Lanka) v. SSHD [2018] EWCA Civ 1391 [33]-[43].
[10] Ibid.
[11] Evidence (Audio and Audio Visual Links) Act 1998 (NSW) s 5B(3).
[12] Justice and Nonverbal Communication in a Post-pandemic World (n 6).
[13] Emma Rowden and Anne Wallace, ‘Performing Expertise: The Design of Audiovisual Links and the Construction of the Remote Expert Witness in Court’ (2019) 28(5) Social & Legal Studies, 698–718.
[14] Odom, J., Zimmerman, L. and Larkin, M., 2020. Tips For Effective Witness Cross-Examination In Remote Trials. [online] Selendy & Gay. Available at: <https://www.selendygay.com/news/publications/2020-08-13-tips-for-effective-witness-cross-examination-in-remote-trials> [Accessed 16 September 2020].
[15] Ibid.
[16] Crimes Act 1914 (Cth) pt IAD.
[17] Family Law Act 1975.
[18] Janet Loughman, ‘In focus: Protecting vulnerable witnesses in family law’ (2016) (February) Law Society of NSW Journal 26.
[19] Anne Maree Wallace, ‘Justice and the ‘Virtual’ Expert: Using Remote Witness Technology To Take Scientific Evidence’ (PhD Thesis, University of Sydney, 2011).
[20] COVID-19 Legislation Amendment (Emergency Measures) Bill 2020 (Emergency Legislation) s 356.
[21] Ibid.
[22] Meg Garvin, Alison Wilkinson and Sarah LeClair, ‘Allowing Adult Sexual Assault Victims to Testify at
Trial via Live Video Technology’, Legal Publications Project of the National Crime Victim Law Institute at Lewis & Clark Law School, 1.
[23] Samantha O'Donnell ‘Pre-Recorded Evidence In Australia In An Era Of COVID-19’ Oxford Human Rights Hub (Web Page, 14 April 2020), <https://ohrh.law.ox.ac.uk/pre-recorded-evidence-in-australia-in-an-era-of-covid-19/>.
[24] Northern Territory Evidence and Other Legislation Bill 2019 (NT).
[25] Explanatory Memorandum, Northern Territory Evidence and Other Legislation Bill 2019 (Cth) 1.
[26] Ibid [3].