IS NEAR ENOUGH GOOD ENOUGH? THE JUDICIARY AND VIRTUAL TRIALS

It’s the year 2036, the Courts have all moved online to some form of virtual trial. Judges and counsel alike are fumbling through multiple technology platforms in order to make cases run as smooth as possible. Previously, a lawyers’ main focus was being skilled and competent, now add tech-wiz to that list. Between nbn drop outs, communicating on three separate platforms simultaneously, and wearing business attire only for the parts in camera view, it’s challenging but we make it work. Oh wait, my mistake, it’s 2020 and the world has been plunged into a global pandemic. Yet, largely the vision of the 2036 Courts look somewhat the same. Amid all the challenges and the strengths of the Courts adaptation, is near enough really good enough? Or are we exposing our clients and counsel to an inferior access to justice?

Access to Justice

The justice system has an overarching duty to promote access to justice. Legal practitioners owe a paramount duty to the Court and the administration of justice which prevail to the extent of inconsistency with any other duty including the duty to the client.[1] Trust is a fundamental component of the lawyer-client relationship. The relationship presupposes that the practitioner’s self-interest is overbalanced by the devotion to serving the client’s interests and the public good.[2] The legal profession is not merely an economic activity. The judiciary can have a profound impact on societies self-image, standards of justice and civilisation and its commitment to the rule of law and human rights.[3] Under the Legal Profession Uniform Law Application Act 2014 (‘Uniform Law’ or ‘the Act’), lawyers are under a duty not to corrupt the administration of justice. The objective of the Act is to promote the administration of justice by ensuring lawyers are competent and maintain high ethical and professional standards in the provision of legal services.[4]  Therefore, it is a Lawyers’ paramount duty to further the administration of justice and in doing so facilitate a just, efficient, timely and cost effective resolution of disputes.[5]

Court adaptation in response to COVID

The Courts have all adapted slightly differently to eTrials. The Melbourne Magistrates’ Court has largely adapted to WebEx hearings with only the most urgent cases being heard, such as plea hearing and bail applications.[6] Only few are physically attending the Magistrates’ Court and only where social distancing can be observed. Similarly, the County Court reduced its work during the pandemic to focus on matters considered high priority, essential or urgent.[7] The County Court is primarily conducting their eTrials via Zoom and WebEx. One of the biggest changes to the County Court is the suspension of new jury trials until late 2020. The Supreme Court of Victoria has implemented virtual hearings for both Civil and Criminal matters using a combination of WebEx, Microsoft Teams, Skype, Zoom, and existing VideoLink technology.[8] While justice hasn’t come to a complete halt, the judiciary has significantly adapted their processes in response to the pandemic.

What have adjournment applications taught us – to continue or to adjourn?

Under the Federal Court of Australia Act 1976 (Cth) (‘the Act’) the overarching purpose of the civil practice and procedure provisions is to promote the just resolution of disputes.[9] More specifically, s 37M(3) of the Act provides a civil practice and procedure power that ‘must be exercised or carried out, in the way that best promotes the overarching purpose’.[10]

In the application for adjournment by Australian Securities and Investments Commission v GetSwift Limited (‘GetSwift’), Justice Lee quoted French philosopher, Voltaire, when describing eHearings and court technology - ‘one must ensure the perfect does not become the enemy of the good’.[11] However, in the interest of the justice system and all it represents, is near enough good enough? Chief Justice Quinlan in JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd, would likely say yes where it is ‘a necessary but proportionate alteration to the normal practice and procedure of the Court consistent with the due administration of justice’.[12]

It’s been overwhelmingly clear in GetSwift, Capic v Ford Motor Company of Australia Limited (Adjournment) (‘Capic’), [13] and Motorola Solutions, Inc. v Hytera Communications Corporations Ltd (Adjournment) (‘Motorola Solutions’),[14] that there has been an emphasis on making cases workable in the current climate. Justice Perram in Capic emphasised that it is not feasible or consistent with administration of justice to adjourn all proceedings. Rather, those who are able to, must carry on, as inconvenient and tedious as it is. [15] To facilitate this, the Court expects parties to be flexible and resilient, and in turn, the Court is prepared to make accommodations to assist the process. Furthermore, if a case becomes unworkable, then it must be adjourned. In response to the real concerns made by the adjournment applications no cost orders were made.[16]

Common concerns in adjournment applications

Common to GetSwift, Capic, and Motorola Solutions, these applications for adjournment focused on three key concerns that can be summarised as the following:

·      Weaknesses and disruptions in the technology;

·      Challenges of witness examination; and

·      Communication between Counsel and document sharing

However, it is also salient to touch broadly on the implications the Court adaptations have on open justice, vulnerable persons, and the importance of jury service.

Perceived weaknesses of the technology

A hearing that cannot be conducted in accordance with traditional practices and procedures does not mean that the Court’s judicial function cannot be performed effectively.[17] According to Justice Lee in GetSwift, numerous accommodations in processes can be made to facilitate effective judicial function. These include: breaks before cross examination so counsel can reconvene, holding witness examinations for overseas witnesses at a more appropriate times so they are not giving evidence in the middle of the night, and the adjournment of the case if it becomes unworkable. Justice Lee said that while the process of receiving evidence via technology was sub-optimal, it was not impaired to an extent which made it second rate justice.[18] Justice Perram in Capic, agreed that while intermittent internet connections are somewhat frustrating, the issues are not insurmountable.[19] Furthermore, the technology hasn’t sufficient failed yet or at all, in order to justify the abandonment of eTrials all together.[20] Therefore imperfect technology does not by itself give reason not to proceed.[21]

Witness examination

Both Justice Lee and Justice Perram found that witness examination can be a strength of eTrials. In Justice Lee’s experience, there has been no diminution in witness examination or being able to pick up on witnesses hesitations or idiosyncratic reactions in eTrials.[22] In furtherance, Justice Lee went on to say that it is a strength of the technology to closely observe the witness without obstruction from the witness box.[23] Justice Perram agreed, however, he acknowledged that there is a reduced chemistry developed between counsel and the witness in eTrials.[24] This could bring with it a reduction in the formality of the proceedings and difficulties when dealing with objections.[25]

Another strength of the eTrials is the fluidity of witness lists. Witnesses are stood down, postponed and interposed for numerous reasons throughout a traditional trial.[26] A strength of eTrials is that there will be no practical delay caused by witnesses not being able to attend, for example, because of a cancelled flight.[27] Rather, the technology is just another factor added to the reasons why witness lists change.[28]

However, in Motorola Solutions, examination of witnesses was a real and genuine concern. This is because several witnesses were prevented from being cross-examined using video platform technology under the Civil Procedure Act of China. If the hearing went ahead, the Court would be exercising Commonwealth sovereignty within the territorial confines of China. Such an action would require permission of the Chinese State. To gain permission, the Court would need to obtain permission under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters. This would not have been possible by the commencement of trial.[29] Accordingly, Justice Perram adjourned the case but not without weighing the balance of prejudices. It would be prejudicial to the trial to omit evidence from the fact-finding process and prejudicial to the witness to not be able to dispute contradicting evidence.[30]

Cross-examination is important Court process and should not be jettisoned for an experimental procedural remedy.[31] Although Hytera accepted that there were aspects of the hearing which could proceed, Justice Perram saw no benefit from further fragmenting the trial as it would not reduce costs or make the case more efficient.[32] The Court also considered case management and the potential for special priority when cases resume, whether application under the Hague Convention should be commenced in the event of continued travel bans, and whether witnesses could bypass the Hague Convention by travelling to Hong Kong.[33] Cross-examination in eTrials can be effective where legislation does not prevent the technology from being used.

Communication between Counsel and document sharing

Justice Lee in GetSwift said that while communication between senior and junior counsel has become more challenging, it was not an insurmountable issue that gives rise to insufficient administration of justice.[34] Furthermore, communication between counsel is still possible, and with patience and forbearance the appropriate accommodations can be made to ensure counsel is not disadvantaged.[35] Justice Perram agreed that while document sharing over a platform such as WhatsApp is not the same as ‘having one’s gown tugged and a piece of paper thrust into one’s hand’ it does not mean that the trial will be unjust or unfair.[36] While the tech isn’t perfect, it is possible for a trial to be conducted fairly, and therefore, up to counsel to be resilient in the digital courtroom.[37]

Open Justice

The times of wandering into the Courts have become somewhat a thing of the past. Where a courtroom is being used, the Court buildings remain open and physically accessible where social distancing can be observed. Yet, for the most part, a member of the public wishing to gain access to an eHearing must contact the Associate or Judicial Officer supplied on the daily list.[38] What is concerning is that some of the work of the Court is being done without an open hearing. Therefore, only the outcome of the matter is open to the public upon contacting the Associate or Judicial Officer listed. It appears that this process poses a tiered level of open justice. On one hand, open justice is available only where there is physical capacity. On the other hand, members of the public must proactively seek out access to eHearings or only observe open justice after matters have been decided. [39] It begs the question whether we can uphold the rule of law when the door to open justice is left ajar. Justice Lee GetSwift, was satisfied that appropriate accommodations could be made in the interest of open justice, and that proceedings could be fully accessible and observed by the public.[40]

Impact on the vulnerable

Technology can pose a number of challenges for those in the community who are most vulnerable. For clients with disabilities or require interpreters, the technology used in eTrials can make it harder for them to participate and understand what is going on.[41] This has serious negative consequences for their ability to access justice. Justice Perram vaguely addressed this in Capic in the context of a witness who does not have access to a computer or adequately know how to use a computer.[42] Justice Perram acknowledged that a lack of household technology assistance creates serious barriers to their participation.[43] However, at the time of the judgement the Court had not encountered these issues in a virtual trial.[44]

Jury service

While the cases above have involved judge alone civil trials, it is important to touch briefly on the importance of jury service. While jury trials are more pertinent in criminal rather than civil matters, jurors do serve a political function. They ensure liberty is upheld by the lay person rather than a privileged professional.[45] This community engagement is vital to the administration of justice and an exercise in democracy.[46] However, the technology and processes aren’t currently capable of holding remote juries. While there has been a relative smoothness in eTrials, replication with jurors pose complications which could inhibit access to justice.[47] Chief Justice Kidd asserts that remote juries would undermine the judicial process and raise questions of integrity.[48] This integrity and judicial process is undermined because jury service is a unified process beginning with jury selection and ending with a collective decision. Disrupting that salient process would create a number of extraneous variables which could inhibit access to justice.[49] Although, Court adaptation to eTrials has been relatively successful and adequately maintains access to justice, it doesn’t appear that this process is currently translatable to trials by jury. 

Is near enough, good enough?

There has been a progressive push for the Courts to move away from a paper-based system. While the pandemic has demonstrated the need for improvements to areas of the virtual Court technology, it is the possible to conduct a fair and just virtual hearing where appropriate. The former rigid and fear ridden response to altering Court processes has been surpassed by the Courts successful adaptation to COVID-19. In the words of Chief Magistrate Hannan, ‘Justice hasn’t changed. Just the mode of delivery’.[50] Although the wrinkles in the fabric of eTrials need some ironing out, it appears that for now, near enough is good enough.

[1] Legal Profession Uniform Law Australian Solicitors’ Conduct Rule 2015 (Vic) r 3.1; Giannarelli v Wraith [1988] HCA 52 per Mason CJ.

[2] Gino Dal Pont, Lawyers’ Professional Responsibility (Thomson Reuters (Professional) Australia Limited, 6th ed, 2017) pg 8 para 1.3.

[3] Michael Kirby, ‘For Today’s Law Students – The Profession You Are Entering’ (Speech, Murdoch Student Law Society Annual Address 1997).

[4] Legal Profession Uniform Law Application Act 2014 (Vic) Ch 1 s 3.

[5] Civil Procedure Act 2010 (Vic) s 10, 16.

[6] Karen Percy, ‘Justice hasn’t changed, just the mode of delivery’: How Victorian courts are adapting to coronavirus’, ABC News (online, 19 May 2020) <https://amp.abc.net.au/article/12258858?__twitter_impression=true&fbclid=IwAR2PxRaacdVTh_9omPKWNisX8jaFgekdGI69bUZjMwcz1JcweeFOoBz4sZg >. 

[7] County Court Victoria, ‘Major changes to operations’ (News and media, 27 March 2020) <https://www.countycourt.vic.gov.au/news-and-media/news-listing/2020-03-27-major-changes-operations>.

[8] ‘About Virtual Hearings’, Supreme Court of Victoria (Web Page, April 2020) <https://www.supremecourt.vic.gov.au/law-and-practice/virtual-hearings>.

[9] Federal Court of Australia Act 1976 (Cth), s 37M.                               

[10] Ibid s 37M(3).

[11] Australian Securities and Investments Commission v GetSwift Limited [2020] FCA 504 (‘GetSwift’), 7.

[12] JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd [2020] WASCA 38, 8.  

[13] Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486 (‘Capic’).

[14] Motorola Solutions, Inc. v Hytera Communications Corporations Ltd (Adjournment) [2020] FCA 539 (‘Motorola Solutions’).

[15] Capic (n 12) 23.

[16] Paul Dewar, Jessica Sapountsis, & Jacqueline Simpkin, ‘Virtual hearing in the Federal Court of Australia: The show must go on’ Davies Collison Cave (IP Article, 6 May 2020) <https://dcc.com/services/litigation-dispute-resolution/virtual-hearings-in-the-federal-court-of-australia-the-show-must-go-on/>.

[17] GetSwift (n 10) 7.

[18] Ibid 25.

[19] Capic (n 12) 10.

[20] Ibid 12.

[21] Ibid 10, 11.

[22] GetSwift (n 10) 33.

[23] Ibid.

[24] Capic (n 12) 17.

[25] Ibid.

[26] Ibid 11.

[27] Ibid.

[28] Ibid.

[29] Motorola Solutions (n 13) 2.

[30] Ibid 5.

[31] Ibid 16.

[32] Ibid 17.

[33] Ibid 20.

[34] GetSwift (n 10) 29.

[35] GetSwift (n 10) 29.

[36] Capic (n 12) 13.

[37] Ibid 30, 31.

[38] ‘Accessing Virtual Hearings’, Supreme Court of Victoria (Web Page, 1 May 2020) <https://www.supremecourt.vic.gov.au/news/accessing-virtual-hearings>.

[39] Ibid.

[40] Ibid, 41.

[41] Percy (n 6).

[42] Capic (n 12) 17.

[43] Ibid.

[44] Ibid 20.

[45] Felicity Gerry, ‘Jury is out: why shifting to judge-alone trials is a flawed approach to criminal justice’, The Conversation (online, 5 May 2020) < https://theconversation.com/jury-is-out-why-shifting-to-judge-alone-trials-is-a-flawed-approach-to-criminal-justice-137397>.

[46] Ibid.

[47] Interview with Peter Kidd CJ (Naomi Neilson, Lawyers Weekly, 25 May 2020) <https://www.lawyersweekly.com.au/biglaw/28410-terribly-problematic-hon-peter-kidd-on-jury-trials-and-covid-19>.

[48] Ibid.

[49] Ibid.

[50] Percy (n 6).