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University of Otago Law Theses and Dissertations |
Last Updated: 11 April 2024
Out of the Courtroom and onto the Screen: Governing Remote Participation in New Zealand’s Courts
Molly Haywood
A dissertation submitted in partial fulfilment of the degree of Bachelor of Laws (Honours) at the University of Otago – Te Whare Wānanga o Ōtākou.
October 2023.
Acknowledgments
Firstly, thank you to my supervisor, Mihiata Pirini, for your kindness, patience, and generosity with your time throughout this process. I cannot thank you enough for your insightful feedback and guidance in navigating this topic area. Your knowledge is truly inspiring.
To the wider Otago Law Faculty, thank you for your inspiration and wisdom over the years.
Thank you to Associate Prof. Bridgette Toy-Cronin for your kind encouragement at my seminar.
To the Law girls, thank you for being my biggest cheerleaders and making the past five years in Dunedin ones I will cherish forever.
To Libby, thank you for always being there and keeping me grounded despite having your own workload to worry about- I am so proud of you.
Finally, thank you to my parents for your unwavering love and support and for reminding me that anything is possible. I am forever grateful for everything you have done and continue to do for me.
Table of Contents
Chapter I: Introduction
The notion of appearing before a court of one’s peers before suffering punishment has been a cornerstone of the legal system since the Magna Carta.1 This has almost always necessitated parties’ physical presence in the courtroom. Courthouses are spaces of immense constitutional importance, manifestations of the judicial branch of government and symbols of the value and importance our society ascribes to the ideal of justice.2 From the outside, the high ceilings, sets of stairs leading up to the entrance and generally imposing size mark the courthouse as a single identifiable site where society can come together to resolve legal disputes.3 The specific architectural design of the courthouse supports the fundamental rituals that facilitate procedural fairness, judicial impartiality and enables justice to be seen to be done, cultivating faith in the justice system. However, the introduction of audio-visual technology enabling remote participation in court proceedings is challenging our very understanding of what it means to have your day in court.Remote participation is increasingly being seen as the answer to ameliorating stressors facing the legal system. Research suggests between 40 and 63 per cent of New Zealanders will experience a legal problem within two years.4 Providing all New Zealanders with equal access to justice to solve these issues is intrinsic to our commitment to the rule of law. Yet many individuals struggle to access the help they need as processes are too slow, expensive or complicated to use.5 Without access to the legal tools necessary to resolve their issues, individuals must elect to live with the stress and financial loss or pursue a remedy without legal representation in high-risk disputes. However, taking justice beyond the four walls of the courtroom and embracing audio-visual links (AVL) may hold the answers to bridging the justice gap. AVL are video conferencing technology enabling parties to participate remotely in
1 Magna Carta 1219, cl 39.
2 Matthew Thomas Watson “Representing Justice: Architecture and the New Zealand Supreme Court” (MArch
Dissertation, Victoria University of Wellington, 2012) at 15.
3 Linda Mulcahy “Architects of Justice: The Politics of Courtroom Design” 16(3) Social and Legal Studies 383 at
384. See generally Law Reform Commission of Western Australia Project 92: Review of the criminal and civil justice system in Western Australia (2012) at 306.; Linda Mulcahy and Emma Rowden The Democratic Courthouse: A Modern History of Design, Due Process and Dignity (Routledge, Oxfordshire, 2020); and Watson, above n 2.
4 Bridgette Toy-Cronin and others Wayfinding for Civil Justice: Draft National Strategy (Ministry of Justice, 2020) at 14. (“Wayfinding for Civil Justice”)
5 Wayfinding for Civil Justice, above n 4, at 2.; Geoffrey Venning “Online Court: Refresh For Justice” (ODR
Forum 2018, Auckland, 14 November 2018) at [28].
proceedings instead of appearing physically in court.6 This reduces the extraneous costs associated with appearing in person, increases efficiency of proceedings and eliminates the geographical barriers to accessing justice. Access to justice is an age-old problem and there is no single solution, but remote participation could be a step in the right direction.
For these aspirations to eventuate, AVL must be moderated to ensure the goals of increased access to justice do not infringe on individuals’ civil liberties. As Goodwin J cautions:7
[The judicial system] must carefully segregate those inefficiencies that are mere products of time and place – which we would be foolish to retain – from those that are deliberately built into our system to spare a free people the convenience of the guillotine.
The Courts (Remote Participation) Act 2010 (“CRPA”) is the overarching legislative scheme governing AVL deployment in New Zealand courts. This dissertation seeks to determine how effective the CRPA is at striking the correct balance between harnessing the promise of remote participation enabling technology whilst protecting fair trial rights and critical facets of the court system guaranteed by in-person appearances. It will be argued the CRPA does not go far enough to protect these fundamental rights and ideals. Consequently, the CRPA should be amended to ensure that as AVL technology continues to permeate the justice system, essential features are not lost.
Chapter II describes the growing trend towards AVL being a common feature of court proceedings and the corresponding regression of the courtroom itself being integral to the delivery of justice. This chapter also outlines the purpose of the CRPA and key provisions governing AVL, providing a foundational understanding for deeper analysis in succeeding chapters.
Chapter III assesses what is at stake when participants appear remotely instead of being physically present in the courtroom. It begins by exploring the importance of the principle of
6 Courts (Remote Participation) Act 2010, s 3.
7 Letter from Joseph R. Goodwin, (District Court Judge for the Southern District of West Virginia), to Robin J. Cauthron, (Chair, Defender Services Committee) regarding the use of video proceedings in federal court (6 September 2001), cited in Jan-Marie Doogue “Ensuring technology serves the interests of justice” (2017) 911 LawTalk 44.
‘open justice’ as a key benefit of in-person proceedings before examining how this ideal, alongside other cornerstones of the legal system, is impacted by remote participation.
Chapter IV considers whether the CRPA adequately safeguards the ideals identified in Chapter III as integral to court proceedings, concluding there are multiple areas where the CRPA falls short, particularly ss 7, 8 and 9. Chapter V proposes two key methods for reform to better safeguard the fundamental rights and ideals at stake.
This dissertation does not assert that remote participation is undesirable. Instead, it recognises remote participation will be the way of the future. As impassionedly expressed by Henry Ward Beecher, “laws and institutions, like clocks, must occasionally be cleaned, wound up, and set to true time”.8 Therefore, this dissertation seeks to give oxygen to the fact that we cannot discount the important benefits of being physically present in court. Remote proceedings must strive to provide the same experience the accused would get in person. This will only be achieved if the legislative scheme governing remote participation safeguards these foundational rights and precepts preserved in the physical courtroom.
8 Henry Ward Beecher Life Thoughts: Gathered from the Extemporaneous Discourses of Henry Ward Beecher
(Phillips, Sampson and Company, 1859) at 129.
Chapter II: Enabling Remote Participation in Court Proceedings
This chapter will demonstrate that steps are being taken internationally and domestically to enable remote participation in the courtroom. Crucially, the CRPA demonstrates remote participation is already pertinent in certain proceedings. The exploration of the policy decisions underpinning the CRPA foreshadows further inquiry in subsequent chapters of whether the legislation sufficiently safeguards the benefits of in-person participation.
I. Trends Towards Remote Participation
Remote participation has been possible for some time under the CRPA (Act will be explained in greater detail below). A growing trend towards using AVL in proceedings was identified as early as 2017. Doogue J notes AVL use for remand appearances doubled from 2015 to 2017 with appearance rates reaching approximately 2000 a month.9 In 2017/18, AVL was used for over 25,000 remand appearances, a 37 per cent increase from the previous year.10 This reflects international trends where in some jurisdictions AVL has become “business as usual”.11 New South Wales invested $40 million from 2014 to 2018 towards expanding AVL networks between courts, correctional facilities and police stations.12 Two-thirds of their criminal court appearances and all parole hearings are now conducted by AVL.13
From 2019 onwards, the Covid-19 pandemic increased its use. The pandemic imposed one of the most significant limitations on public access to courthouses in Aotearoa’s history.14 At the higher alert levels, courts operated remotely where possible and, where not possible, significantly restricted the number of people entering courthouses. Conducting proceedings via AVL was not a new phenomenon but was very different to the traditional use for short, urgent proceedings to avoid bringing defendants on remand to Court, or to resolve issues that did not need a public hearing.15 We have “transform[ed] a paper-based, face-to-face system into one
9 Doogue, above n 7, at 46.
10 Ministry of Justice Annual Report 2017/18 (July 2018) at 12.
11 Doogue, above n 7, at 46.
12 Russell G. Smith, Rebecca Savage and Catherine Emami “Benchmarking the use of audiovisual link technologies in Australian criminal courts before the pandemic” (Australian Institute of Criminology, Research Report 23, 2021) at 11. See also New South Wales Bureau of Crime Statistics and Research “Appearing in court by video-link has no impact on the chance of being granted bail” (2 February 2021) <www.boscar.nsw.gov.au>. 13 Doogue, above n 7, at 44.
14 New Zealand Government “COVID-19 Alert Level system” (2020). <www.covid19.govt.nz>.
15 Wellington Higher Courts Reporter “From 'Oh dear, this is hopeless' to OK” (29 April 2020) Stuff
that can operate using...remote hearings”.16 At the beginning of the pandemic, Winkelmann CJ stressed these changes were temporary and we would return to face-to-face hearings after the “Covid-19 emergency”.17 However, the effectiveness of AVL has seen its increased use today despite the Court functioning in its pre-COVID capacity.18 Since April 2022, 85 per cent of New Zealand courts have had some form of AVL capability.19Further, the annual number of court events where at least one party attended via AVL increased by 40 per cent between 2017-2022.20
Recent governmental and judicial initiatives indicate Aotearoa’s commitment to modernise court proceedings by embracing AVL. The Digital Strategy for the Courts and Tribunals of Aotearoa New Zealand, released earlier this year, outlines a comprehensive roadmap of initiatives to incorporate technology into court processes across the next decade.21 While many initiatives focus on case management systems, there are key references to remote participation. Notably, one of the ‘high-priority’ initiatives includes implementing a “high quality reliable and flexible system for remote hearings using audio-visual (AV) technologies” by December 2024.22 This implementation will follow a review of current standards of audio-visual equipment and how it can be refreshed to better meet participant’s needs.23 While refreshing court participation technology is identified as a focus area, “remote hearing systems” are explicitly excluded suggesting hesitancy to place greater emphasis on AVL at the risk of discouraging in-person administration of justice.24 Further, while some initiatives have
16 Helen Winkelmann, Chief Justice of New Zealand “Media Statement- Chief Justice announces timetable for resumption of jury trials” (press release, 8 June 2020) <www.courtsofnz.govt.nz> at 2. (“Media Briefing 2”).
17 Helen Winkelmann, Chief Justice of New Zealand “Covid-19 Media Briefing” (press release, 3 April 2020)
<www.courtsofnz.govt.nz> at 6. (“Media Briefing 1”).
18 See for example David Plunkett Annual Report of the Real Estate Agents Disciplinary Tribunal (July 2022) at 2.
19 Written Question from Hon Paul Goldsmith to the Minister for Courts “Further to WPQ 7132 (2022), how many courts in New Zealand, if any, have the facilities for audio-visual hearings, broken down by court type and region?” (WQ8329 24 March 2022).
20 Written Question from Chris Penk to the Minister for Courts “What number of court events were conducted via
Audio-Visual per annum in 2017, 2018, 2019, 2020, 2021, 2022, if any?” (WQ24658 15 August 2023).
21 Helen Winkelmann, Chief Justice of New Zealand “Digital Strategy for the Courts and Tribunals of Aotearoa New Zealand” (The Office of the Chief Justice, March 2023); and Helen Winkelmann, Chief Justice of New Zealand “Chief Justice launches Digital Strategy for Courts and Tribunals of Aotearoa New Zealand” (press release, 29 March 2023).
22 Digital Strategy, above n 21, at 23. See 25-27 for references to AVL in other priority categories particularly (f), (n), (u) and (s).
23 Digital Strategy, above n 21, at 23.
24 Digital Strategy, above n 21, at 26, (n).
commenced, like ‘Te Au Reka’, the implementation process for others is unclear.25 There are five or ten-year timeframes depending on the priority level but the strategy does not outline specific implementation processes or address how compliance will be monitored. Nonetheless, the fact that uptake is still high post-pandemic and being encouraged by the judiciary indicates an incremental shift away from the physical courtroom being integral to court proceedings.
II. Benefits of Remote Participation
Commentators encouraging greater uptake of AVL in proceedings may be influencing policymakers and contributing to increased adoption over time. Renowned advocate for online court systems, Richard Susskind, believes our court systems are “antiquated” and incompatible with today’s digital society requiring urgent upgrades.26 Thus, AVL technology is the “most promising way of radically increasing access to justice around the world”.27 Susskind and other scholars cite various factors to explain the growing support for remote participation.28 Remote participation enables participants to appear from a convenient location eliminating geographical barriers to appearing in court. This reduces costs associated with travel, taking time off work, and childcare.29 Further, remote proceedings are more likely to adhere to timeframes making the process less confusing for participants.30 The process can also be less intimidating as participants do not endure the added stress of “find[ing] their hearing room, wait[ing] for their case to be called and...[encountering] a possibly hostile opposing party in
25 See Digital Strategy, above n 21, at 23-24. “Te Au Reka” (formerly known as ‘Caseflow’) is a project designed to implement digital systems for case management and maintaining court records and files to bring the courts into the modern era. The project is well underway with aspirations for the new system to be progressively introduced to all courts and tribunals from 2023 onwards.
26 Richard Susskind Online Courts and the Future of Justice (2nd ed, Oxford University Press, Oxford, 2021) at 8, 28.
27 Susskind, above n 26, at 34.
28 See generally Geoffrey Venning, Judge of the High Court of New Zealand “Access to Justice- A Constant Quest” (speech to the New Zealand Bar Association Conference, Napier, 7 August 2010) at 12.; Mary Ryan, Sarah Rothera, Alice Roe, Jordan Rehill and Lisa Harker “Remote hearings in the family court post pandemic” (Nuffield Family Justice Observatory, London, 2021).; and Natalie Byrom, Sarah Beardon and Abby Kendrick “The Impact of COVID-19 Measures on the Civil Justice System” (Research Report, Civil Justice Council, May 2020) at 53. 29 See for example Debras v R Rustom [2007] NSWCCA 118 [39] (30 April 2007) in Smith, Savage and Emami, above n 12, at 21. The use of AVL enabled a witness to give evidence to an Australian Court from a New Zealand prison. See also Ashley Batastini, Brendan McDonald and Robert Morgan “Videoteleconferencing in forensic and correctional practice” (2013) in Kathleen Myers and Carolyn L. Turvey (eds) Telemental health: Clinical, technical and administrative foundations for evidence-based practice. (Elsevier Insights, Netherlands, 2013) 266. 30 Ryan and others, above n 28, at 12.; Emma Rowden, Anne Wallace, David Tait, Mark Hanson, and Diane Jones Gateways to Justice: Design and Operational Guidelines for Remote Participation in Court Proceedings, (University of Western Sydney, Sydney, 2013), at 6-7; Robert McDougall “The Uses and Abuses of Technology in the Courtroom” (Keynote address to the Society of Construction Law, Australia Conference, 2013) at 5, cited in Smith, Savage and Emami, above n 12, at 22.
an intimidating and foreign environment”.31 Additionally, the likelihood of witnesses experiencing “secondary victimisation” associated with being in the defendant’s presence is reduced.32 This has multiple benefits for vulnerable witnesses including children or victims of sexual assault.33
III. The Legislative Framework for Remote Participation
The CRPA is the legislative framework governing AVL in all judicial proceedings throughout Aotearoa. The Bill was proposed by former Justice Minister, Hon Simon Power MP, to encourage widespread use of AVL in courts and ensure AVL facilities are “used to their full potential” as existing legislation limited the Court’s ability to take advantage of AVL technology.34 AVL could only be used for witness appearances, applications for leave to appeal, and custodial appearances at Court of Appeal hearings.35 This historically limited use reflects the broader legislative environment where the judiciary has interpreted enactments requiring defendants to “be brought before a court” or “be present in court”,36 as necessitating physical presence in the courtroom.37
Requiring defendants to appear in person comes at a significant price.38 The immediate costs associated with enabling prisoners to appear in person include the costs of transporting them to and from the courthouse, housing them at court, and providing security. At the time of introducing the legislation, these costs were expected to be exacerbated by the anticipated growth in prisoners on remand, which would increase demand for court appearances and
31 Bridgette Toy-Cronin “A happy medium? Telephone hearings for litigants in person facing housing eviction” (2022) 44(4) Journal of Social Welfare and Family Law 477. See also, Honor Figgis and Rachel Simpson “Dangerous offenders legislation: An overview” Briefing Paper 14/1997 (NSW Parliamentary Library Research, New South Wales) <www.parliament.nsw.gov.au>, cited in Smith, Savage and Emami, above n 12, at 23.; and Ryan and others, above n 28, at 12.
32 Anne Wallace “E-justice: An Australian perspective” (2008) in Augusti Cerillo Martinez and Pere Fabra i Abat (eds) E-Justice: Information and Communications Technology in the Court System (IGI Global, New York, 2008) at 208.; and Judy Cashmore and Lily Trimboli “Child sexual assault trials: A survey of juror perceptions” Crime and Justice Bulletin 102 (NSW Bureau of Crime Statistics and Research, Sydney, 2006) cited in Smith, Savage and Emami, above n 12, at 23.
33 Attorney-General’s Department of NSW “Responding to sexual assault: The way forward” (Criminal Justice Sexual Offences Taskforce, Sydney, 2005) <www.justice.nsw.gov.au> at 106; Cashmore and Trimboli, above n 32.
34 Courts (Remote Participation) Bill 2009 (107-3) (explanatory note) at 1-2. (“Explanatory Note”).
35 Explanatory Note, above n 34, at 4.
36 New Zealand Bill of Rights Act 1990, s 23(3) (“NZBORA”); Criminal Procedure Act 2011, s 117(1).
37 Connelly v R 15 CRNZ 662, [1998] 3 NZLR 763 (HC).
38 Explanatory Note, above n 34, at 4–5.
associated prisoner transports.39 As Mr Power commented at the Bill’s second reading, usingAVL for procedural matters was “a sensible and safer response to significant court pressures”.40
Liam Ashley’s death in 2006 likely influenced the timing of the Bill’s proposal. Ashley, a prisoner on remand, was assaulted by another prisoner whilst being transported to court. The death elicited public outcry about the conditions of prisoner transportation and for the government to react to prevent further tragedy. In his investigation into prison transportation following the death, one of the Chief Ombudsman’s recommendations was increasing AVL for prisoners on remand.41 Mr Powers commented that AVL “would reduce the need to transport prisoners to and from court, which can have tragic consequences, as it did in the case of young Liam Ashley”.42 Framing the proposed Bill as a solution to this harrowing incident, one that was still raw, may have helped increase public support as the Bill passed through the House.
The Explanatory Note emphasised that for AVL to gain prominence, there would need to be a culture change within the judiciary, moving away from historical notions of physical presence being the only way to participate effectively.43 The Regulatory Impact Statement (RIS) outlines the alternative legislative options Parliament considered.44 One proposal was to specify when AVL can and cannot be used by identifying the type of participant and when that participant could appear via AVL. Alternatively, the Act could list the specific proceedings where participants could and could not appear via AVL. These options were discounted because such distinctions between participants or proceeding type were “relatively arbitrary”.45 Another proposal was to follow the Tasmanian approach by establishing a general presumption for AVL deployment.46 This would be supported by guidelines emphasising the overriding consideration of consistency with maintaining the interests of justice. However, there was concern this general presumption would not provide a “sufficient threshold for greater consideration of when AVL would be appropriate”.47
39 Explanatory Note, above n 34, at 4–5.
40 (29 June 2010) 624 NZPD 12266.
41 Investigation by John Belgrave, Chief Ombudsman and Mel Smith, Ombudsman of the Department of Corrections in Relation to the Transport of Prisoners (2006) at 25.
42 (29 June 2010) 624 NZPD 12266.
43 Explanatory Note, above n 34, at 7-8.
44 Explanatory Note, above n 34, at 5-6.
45 Explanatory Note, above n 34, at 5-6.
46 Explanatory Note, above n 34, at 6; See Tasmania’s Evidence (Audio and Audio Visual Links) Act 1999. A court may direct, on the application of a party or on its own motion, that any person may appear before the court via AVL or AL.
47 Explanatory Note, above n 34, at 6.
The CRPA adopts a modified presumption for using AVL. This means AVL can be used by a participant in any court proceeding, however, the legislation delineates three categories of proceedings, each with corresponding presumptions for or against AVL. These categories are defined in s 3:
civil proceedings means any proceedings in a court, other than criminal proceedings.
criminal procedural matter means any matter, in a criminal proceeding, in respect of which no evidence is to be called.
criminal substantive matter means any matter, in a criminal proceeding, in respect of which evidence is to be called.
“Participant” is defined broadly to include a person in the proceedings who is a party, the defendant, counsel, witness, jury member, judicial officer or Registrar, or “any other person directly involved in the proceeding whom the judicial officer or Registrar considers appropriate”.48
Section 5 outlines general criteria the judicial officer or Registrar must consider when determining whether to permit AVL in any proceeding:
(a) the nature of the proceeding:
(b) the availability and quality of the technology that is to be used:
(c) the potential impact of the use of the technology on the effective maintenance of the rights of other parties to the proceeding, including—
(i) the ability to assess the credibility of witnesses and the reliability of evidence presented to the court; and
(ii) the level of contact with other participants:
(d) any other relevant matters.
48 Section 3.
Additional criteria to be considered in all criminal proceedings are contained in s 6. Decision- makers must consider the potential impact of using AVL on the “effective maintenance of the right of the defendant to a fair trial, and on his or her rights associated with the hearing”. Seven considerations are explicitly identified:
(a) the ability of the defendant—
(i) to comprehend the proceedings; and
(ii) to participate effectively in the conduct of his or her defence; and
(iii) to consult and instruct counsel privately; and
(iv) to access relevant evidence; and
(v) to examine the witnesses for the prosecution; and
(b) the level of contact the defendant has with other participants; and
(c) any adverse impression that may arise through the defendant or any other participant appearing by means of AVL, and whether that adverse impression may be mitigated.
Sections 5 and 6 were designed to operate in unison to “ensure the maintenance of the fair trial rights of all parties to the proceeding”.49
The following provisions distinguish between civil and criminal proceedings. When contemplating using AVL in civil proceedings, decision-makers must refer to s 7 which states:
(1) AVL may be used in a civil proceeding for the appearance of a participant in the proceeding if a judicial officer or Registrar determines to allow its use for the appearance of that participant.
(2) A judicial officer or Registrar may make a determination under subsection (1)—
(a) on his or her own motion; or(b) on the application of any participant in the proceeding.
(3) A determination under subsection (1) must—
(a) be made in accordance with the criteria in section 5; and(b) take into account whether or not the parties consent to the use of AVL for the appearance of the participant.
49 Crime Prevention and Criminal Justice Group “Departmental Report for Justice and Electoral Committee Courts (Remote Participation) Bill 2009” (Ministry of Justice, April, 2010) at 6.
The Act creates different presumptions for and against using AVL in criminal procedural matters and criminal substantive matters.
Section 8 establishes a presumption in favour of AVL in criminal procedural matters where the defendant is in custody:50
AVL must be used for the appearance of a participant in a criminal procedural matter if AVL is available and the participant is in custody, unless a judicial officer or a Registrar determines that the use of AVL is contrary to the interests of justice.
If the defendant is not in custody, but AVL is available and such use would not be “contrary to the interests of justice”, AVL “may be used”.51 There is no presumption either way – it is at the discretion of the decision-maker, having regard to the relevant criteria. Additionally, AVL may be used for a defendant in custody to appear in a sentencing matter.52 Before making a determination under s 8, the decision-maker must also “take into account” the ss 5 and 6 criteria.53
Section 9 deals with criminal substantive matters adopting a presumption against AVL use in all instances. AVL must not be used for the appearance of a participant in a criminal substantive matter unless a judicial officer permits its use in accordance with the ss 5 and 6 criteria. Whether the parties consent must also be taken into account.54 Where a defendant is appearing in a trial that determines their guilt or innocence, the need for consent is critical, not just a mandatory consideration. Under s 9(2), AVL must not be used for the appearance of the defendant in a trial determining their guilt or innocence unless that defendant consents. When it comes to a substantive matter in respect of a trial, this provision does not discount the
50 Section 8(1).
51 Section 8(1A).
52 Section 8(2).
53 Section 8(3)
54 Secion 9(1)(a)-(b).
potential use of AVL; however, if the defendant does not consent, they should have the opportunity to be physically present.55
These different presumptions reflect Parliament’s view that civil matters do not present the same human rights concerns as criminal matters.56 Therefore, s 7 was intended to create the least “rigorous” test for deploying AVL, with the test gradually becoming more stringent through ss 8 and 9 as the rights at risk increase.57
In 2018 the Chief District Court Judge issued a Judicial Protocol to guide judicial officers and Registrars when presiding over proceedings using AVL for the appearance of prisoners in the District Court or Senior Courts.58 They mainly outline the procedural requirements for AVL proceedings including that the Judge must be satisfied the prisoner can see and hear all required parties.59 An additional ‘Architectural and Courtroom Transition Protocol’ describes how AVL installations should be positioned to facilitate the prisoner’s ability to have a “similar sensory experience of the courtroom that they would otherwise have in person”.60 There are additional mechanisms for ensuring the remote location enables the prisoner to access evidence, provide instructions to their counsel and is sufficiently visually distinct for the defendant to be aware that their booth is part of the distributed courtroom.61 The problem with this is the Protocol only covers criminal appearances of prisoners in the District and Senior Courts. I will return to this in Chapter V.
55 (30 June 2010) 664 12373.
56 Explanatory Note, above n 34, at 6-7.
57 Explanatory Note, above n 34, at 7.
58 Jan-Marie Doogue, Chief District Court Judge “Judicial Protocol Audio Visual Links Procedure for Prisoner Appearances in Courts” (2018). (“Judicial Protocol”).
59 They also direct the Judge as to the language they should use when making the final determination, protocol for a technological failure, and their onus to inform the participant that they may speak to their counsel privately if necessary. Notably, they stipulate that the Judge must confirm that no one else is present in the remote facility, or if staff are present, they must remain within the view of the camera and are not allowed to influence the participant during the proceeding.
60 Judicial Protocol, above n 58, at cl 1. Per cl. 6 this includes enabling non-verbal gestures to be visible from the courtroom by ensuring camera angles frame the head to mid-torso of the participant.
61 At cl 8-16.
IV. Conclusion:
This chapter has established that remote participation has been possible under the CRPA since 2010, with a growing trend identified as early as 2017. Covid-19 increased AVL use in proceedings and this has continued post-pandemic; the uptake is still high and the judiciary are adapting to encourage remote participation as the future. Commentators encouraging greater uptake of AVL is likely influencing policymakers, contributing to increased adoption over time. The latter part of this chapter outlined the legislative framework, the CRPA, detailing how remote participation in court proceedings is governed. This foreshadows my inquiry into whether the CRPA adequaetly protects the benefits of in-person participation.
Chapter III: What is at Stake?
This chapter will explore what is at stake when physical presence is replaced with AVL. To answer this question, I first evaluate the importance of the principle of ‘open justice’ as a key benefit of in-person proceedings before establishing how the courtroom itself is critical for upholding this value. I then focus more closely on how participants are impacted by remote participation.
I. The Principle of ‘Open Justice’
As the benefits of in-person proceedings are intangible, they are often overlooked. However, the courtroom itself ensures justice is administered fairly and the public has confidence in the legal system.62 Crucially, the courtroom preserves the principle of open justice. This principle is of immense “constitutional importance” reflected in both common law and statutory authorities.63 Open justice encapsulates a long-standing proposition that courts must do justice in public; transparency is a fundamental characteristic of our justice system.64 This proposition has had various iterations however, the most common expression comes in the form of an aphorism derived from Lord Chief Justice Hewart; “It is...of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done”.65 Academic commentary typically emphasises the same core components underpinning this principle. Ernest Ryder has articulated these as equal access to the Court, public scrutiny of
62 Susan A. Bandes and Neal Feigenson "Virtual Trials: Necessity, Invention, and the Evolution of the Courtroom” (2020) 68(5) Buff. L. Rev. 1275 at 1278.63 Erceg v Erceg [2016] NZSC 135 at [2]. See Broadcasting Corp of New Zealand v Attorney General [1982] 1 NZLR 120; New Zealand Bill of Rights Act 1990, s 25; Senior Courts (Access to Court Documents) Rules 2017, r 8; District Court (Access to Court Documents) Rules 2017, r 8; European Convention on Human Rights, art. 6. See also Scott v Scott [1913] AC 417 at 473 (Lord Shaw describes the principle of open justice as “a sound and very sacred part of the constitution of the country and the administration of justice”).
63 Erceg v Erceg [2016] NZSC 135 at [2]. See Broadcasting Corp of New Zealand v Attorney General [1982] 1
NZLR 120; New Zealand Bill of Rights Act 1990, s 25; Senior Courts (Access to Court Documents) Rules 2017, r 8; District Court (Access to Court Documents) Rules 2017, r 8; European Convention on Human Rights, art. 6. See also Scott v Scott [1913] AC 417 at 473 (Lord Shaw describes the principle of open justice as “a sound and very sacred part of the constitution of the country and the administration of justice”).
64 Jérémy Boulanger-Bonnelly “Public Access to Online Hearings” (2022) 45(2) Dalhousie Law Journal 304 at 306.
65 R v Sussex Justices; Ex parte Macarthy [1923] EWHC KB 1; [1924] 1 KB 256 at 259. See generally Ambard v Attorney General for Trinidad & Tobago [1936] AC 322 at 335 (“Justice is not a cloistered virtue”); and Leeson v General Medical Council [1889] LJ 59 Ch NS 233 at 241 (“Judges, like Caesar’s wife, should be above suspicion”).
both judges and judgements, and public scrutiny of the judiciary’s constitutional role.66 I am particularly interested in how the courtroom upholds these first two components.
While remote participation under the CRPA concerns participants involved in proceedings, whereas open justice focuses more on public access to courts, this principle remains important for analysing what may be lost by increased remote participation. Even though participants may still see justice being done (AVL is designed to enable remote viewing), as I will explore, the public plays a critical role in participants’ court experience, encouraging procedural fairness and thus, better outcomes for participants.
Courts must be universally accessible; “For democracy to be meaningful the courts must be open to all”.67 As articulated by Lord Reed, without unimpeded access to courts “laws are liable to become a dead letter”.68 Open justice exists to protect the public’s right to “be informed about what happens in the court”.69 Individuals can attend cases but crucially the media have a right to be present “to inform more broadly” upholding the democratic ideals of a society governed by the rule of law.70
Public access to the Court is not the same when proceedings are no longer heard in this one central location. While AVL ensures participants can appear in proceedings, the same courtesy is not presumptively extended to the public or even media. Thus, this method of democratic accountability may be lost.
66 Ernest Ryder, Senior President of Tribunals in the United Kingdom “Securing Open Justice” (Speech to the Max Planck Institute Luxembourg for International, European, and Regulatory Procedural Law & Saarland University ‘Open Justice’ Conference, Luxembourg, 1 February 2018) at 2-5.
67 Ryder, above n 66, at 2. See also Criminal Procedure Act 2011, s 196. Note, that limited exceptions apply including in matters before the Youth Court and where charges involve sexual offending (see ss 97, 197, 199, 199AA).
68 R (UNISON) v Lord Chancellor [2017] UKSC 51, [2017] 3 WLR 409 at [68].
69 Sue Prince “Fine words butter no parsnips: Can the Principle of Open Justice Survive the Introduction of an
Online Court?” (2019) 38 CJQ 111.
70 Prince, above n 69.
Open justice provides a “check on the performance of judges”.71 The judiciary must be free from “improper influence”,72 because “impartiality and the appearance of impartiality” are essential for maintaining public confidence in court processes.73 Open justice encourages judges to “act professionally” because any mistake can attract public scrutiny.74This publicity “keeps the judge...while trying, under trial”.75 As expressed by Sir Owen Dixon:76
The litigant who is going to lose...must leave the court satisfied with the system in which he has lost...that his counsel and his case had fair treatment and every chance.
The place where proceedings are heard must be one of transparency where justice truly is seen to be done, reinforcing the authority and legitimacy of our courts. In the physical courtroom the public gallery and press benches are prominent symbols of open justice.77 The courthouse is a known, identifiable location where proceedings occur with all the “relevant protections of the rule of law and principle that such understanding entails”.78 Its doors are open to the public who can, “sit in almost any courtroom...and watch the parties and their lawyers present their arguments and the judge dispense justice” in real-time.79
If our understanding of law and justice is shaped by what we see and experience, remote participation limits these visual markers and participants cannot be unequivocally certain decisions are made justly.80 Even if processes remain legitimate and the values of impartiality
71 Marilyn Warren “Open Justice in the Technological Age” [2014] MonashULawRw 5; (2014) 40(1) Monash University Law Review 45, 46. See also Russell v Russell (1976) 134 CLR 495 at 520; Hogan v Hinch (2011) 243 CLR 506 at [20]; and Commissioner of the Australian Federal Police v Zhao [2015] HCA 5; (2015) 255 CLR 46 at [44].
72 David Malcolm “Independence of the Judiciary in the Asia-Pacific Region” (2004) 78(7) Australian Law Journal 458 at 461; Tom Bingham The Rule of Law (Penguin Books, 2011) at 93 in Michael Legg “The COVID- 19 Pandemic, the Courts and Online Hearings: Maintaining Open Justice, Procedural Fairness and Impartiality” (2021) 49(2) 161 at 179.
73 Legg, above n 72, at 179.
74 Boulanger-Bonnelly, above n 64 at 308.; Al-Rawi v Security Services [2010] EWCA 482, [2012] 1 AC 531 at 543, in Ryder, above n 66, at 4. Lord Neuberger MR expressed a judge observed is a “democratically accountable judge”.
75 J. Bentham “Draught for the Organization of Judicial Establishment” in J Bowring (ed) The Works of Jeremy Bentham Volume 4 (William Tait, Edinburgh, 1843) at 316 in Ryder, above n 66, at 4.
76 Boulanger-Bonnelly, above n 64 at 308.
77 Prince, above n 69, at 114.
78 Prince, above n 69, at 115.
79 Boulanger-Bonnelly, above n 64 at 304.
80 Judith Resnick and Dennis Curtis Representing Justice: The Creation and Fragility of Courts in Democracies
(Yale University Press, New Haven, 2011) in Prince, above n 69, at 114.
and procedural fairness are upheld, the issue is the appearance of possible impropriety when AVL is used.
II. Potential Drawbacks
In 2020, Dr Natalie Byrom, Director of Research and Learning at the Legal Education Foundation, conducted a rapid evidence review consulting 21 studies to determine the impact of remote hearings on access to justice.81 While their conclusions relate specifically to the English family justice system five key concerns were outlined about participants’ capacity to participate effectively in remote proceedings. These findings are a useful method for classifying additional concerns about the potential drawbacks of remote participation.
The courthouse is more than just a building. The design, rituals and practices are specifically constructed to give reverence to the significance of the matters decided within.82 Court proceedings can have long-lasting ramifications on individuals’ livelihoods. A Family Court hearing could result in losing a custody battle. An Employment Court hearing could cause businesses irreparable financial loss. The embodied experience of physically appearing before the Court reflects this significance. Remote participation, where participants can ‘zoom’ in from the comfort of their homes may be convenient, but it risks debasing the importance of administering justice.83
There are many rituals associated with courtroom procedure including wearing formal attire, using formal language to address the Judge and standing when speaking to the Court. These rituals may seem archaic and unnecessarily orthodox, but they often have special meanings behind them helping to distinguish court processes from ordinary online transactions. For example, judicial robes do not only connote authority, they pay homage to Aotearoa’s unique history with “stylised kauri cone and leaves” symbolising the Court’s role as a “shelter for all people under the law”.84 Going to the courthouse and appearing before the Judge, with all the
81 Natalie Byrom “What we know about the impact of remote hearings on access to justice: a rapid evidence review” (Briefing paper, Nuffield Family Justice Observatory/The Legal Education Foundation, London, May 2020) <www.nuffieldfjo.org.uk>.
82 Alina Mihaela Radu “Expressiveness and Symbolism in Architecture Intended for Justice” Challenges of the Knowledge Society (2023, Nicolae Titulescu University Editorial House, Bucharest) at 560-561.
83 Guy Pratte “Is virtual justice real justice?” (26 October 2022) LAW360 Canada <www.law360.ca>.
84 Courts of New Zealand “Judicial Ceremonial Robes” <www.courtsofnz.govt.nz>.
special rituals this entails, is the justice system’s way of acknowledging the significance of theevent and creating an environment of reciprocal significance.
According to Byrom’s review, when proceedings are conducted remotely participants do not “fully appreciate the seriousness or finality of proceedings”.85 This is supported by an Australian study which found AVL “alters the representation of the judge as the embodiment of law...undermining the gravity and decorum of court proceedings”.86 The very being in a courtroom makes proceedings ‘real’ because the building itself conveys the seriousness of proceedings. Historically, decisions about where to hold trials sought to remove participants from “the familiar” and construct a “special place for adjudication” to communicate the seriousness of the event.87 The Judge’s bench is generally positioned front and centre. Counsel tables are usually located in front of the bench with barriers or glass separating the space between participants and the public gallery behind them. The witness box is usually situated at the side of the courtroom and courtrooms that handle jury trials include a jury box. Most courtrooms have embedded accessibility mechanisms for individuals with disabilities such as ramps and designated seating. Additional security measures, including metal detectors and security personnel, are also deployed for the safety of attendees. These deliberate design decisions emphasise the majesty of proceedings and facilitate a fair process. As Justice Kirby observed:88
[A judge] sits on an elevated bench, not to promote a sense of self-importance, but to symbolise his or her removal from the fray. Such removal is designed to promote both the appearance and actuality of neutrality and independence of the parties which are the hallmarks of the judicial office”
When AVL is deployed this symbolism is reduced.89 Judges can appear “just like anyone else
with [their] face in a little square on the screen”.90 Commentators have suggested inserting
85 Byrom, above n 81, at 2.
86 Anne Wallace, Sharyn Roach Anelu and Kathy Mack “Judicial engagement and AV links: judicial perceptions from Australian courts” International Journal of the Legal Profession (2018) 51 at 55 in Byrom, above n 81, at 2. 87 Legg, above n 72, at 182.
88 Council of the Municipality of Burwood v Harvey [1995] NSWSC 149; (1995) 86 LGERA 389 at 396.
89 Emma Rowden and Anne Wallace “Remote Judging: the Impact of Video Links on the Image and the Role of the Judge” (2018) 14(4) International Journal of Law in Context 504, at 514. Note the example where the location of the camera in the courtroom had the effect of making the witness look down on the judge at 515.
90 Celia Kitzinger “Remote Justice: A Family Perspective” Transparency Project (Blog Post, 29 March 2020)
<https://transparencyproject.org.uk/>.
other symbols such as the coat of arms of the jurisdiction behind the Judge to demarcate them from other participants however, this is unlikely to have the same effect.91
The external design is equally important. Courthouses are typically prominent, imposing buildings making them easily identifiable as a “place of power”.92 Glass has become a key feature in modern courthouse design to convey the principles of open justice. Anyone walking past should feel they could look in and know what is happening.93 The European Court of Human Rights is constructed of glass towers to make a statement about the need for transparency in proceedings about human rights.94 Glass was deliberately included in Aotearoa’s Supreme Court Complex to align with the notion of an open court.95 This transparency reassures participants the process is fair and free from judicial impropriety.
Furthermore, this structure where participants can be constantly seen from all angles offers a “morally persuasive environment” making them less likely to lie.96 Without direct intimidation of the full force of the law encouraging honest witness testimony, witnesses may have greater opportunity to lie or abuse the ‘remote-ness’ of remote hearings. Bandes and Feigenson note the “casual, familiar environment” of the remote location where witnesses will testify coupled with the “physical distance from the authority of the court” can mean participants behave in ways that would be inappropriate in a physical courtroom.97
Remote participation may impair defendants’ ability to effectively participate in proceedings as they may have difficulty communicating with their counsel to raise concerns.98 This was a compelling factor in Brown J’s analysis of ss 5 and 6 of the CRPA in R v NRS.99 His Honour
91 Nye Perram “Video Justice: Ten Years of Progress for Courts in Eight Weeks” The Australian Financial Review (Sydney, 15 May 2020) at 33.
92 Mulcahy and Rowden, above n 3, at 384.; Radu, above n 82, at 563.
93 Mulcahy, above n 3, at 399.
94 Linda Mulcahy Legal Architecture: Justice, Due Process and the Place of Law (Taylor & Francis Group, London, 2011) at 153-154.
95 Warren and Mahoney “The Supreme Court of New Zealand” <www.warrenandmahoney.com>.
96 Bandes and Feigenson, above n 62, at 1297.
97 Bandes and Feigenson, above n 62, at 1297.
98 Byrom, above n 81, at 3.
99 R v NRS [2015] NZHC 47.
held AVL would be disruptive and impractical, because it would impact the defendant’s abilityto participate effectively, consult counsel privately and cross-examine witnesses.100
The physical separation of the defendant when AVL is used may have an isolating effect, discouraging defendants from expressing themselves to the extent they would in the physical courtroom. In their report “Inclusive justice: A System Designed for All”, Britain’s Equality and Human Rights Commission note the separation between the defendant, their counsel and/or the Court inhibited the defendant’s meaningful participation.101 Further concerns were raised that using AVL may undermine access to justice for disabled defendants.
Another finding of Byrom’s research is that low-quality technology risks undermining effective participation.102 What if the internet drops out halfway through a proceeding? What if when all participants appear via AVL one side has access to sophisticated technology but the other does not? Does this undermine the notion of equality before the Court? Remote participation brings a whole new opportunity for lady justice’s scales to be predisposed in favour of those on the superior side of the digital divide.
The delivery of witness testimony in open court is an important component of the justice system. It is founded on the assumption that personal observation is pertinent to the evaluation of demeanour and that demeanour speaks to witness credibility.103 It should be noted that there is sizeable research indicating demeanour is not always a reliable indicator of credibility. However, observation of witness demeanour is still a relevant component of our criminal procedure. Section 83 of the Evidence Act 2006 states the ordinary way of giving evidence is orally in a courtroom. A key reason for the emphasising orality is so the jury can see witnesses in person and assess their demeanour.104 Furthermore, in Taniwha v R the Supreme Court acknowledged issues with relying on witness demeanour but noted we derive some benefit from seeing witnesses in person.105 There are situations where words spoken alone are
100 R v NRS, above n 99, at [16], [17], [20], [25].
101 Great Britain Equality and Human Rights Commission Inclusive Justice: A System Designed for All- Interim Report (April 2020) at 3.
102 Byrom, above n 81, at 3.
103 Susan Bandes “Remorse, Demeanour, and the Consequences of Misinterpretation: The Limits of Law as a Window into the Soul” (2014) 3 Journal of Law Religion and State 170 at 172.
104 Taniwha v R [2016] NZSC 123, [2017] 1 NZLR 116 at [1].
105 At [29], [30], [35].
insufficient to understand what the witness seeks to convey. Demeanour evidence relies on interpreting facial expressions, body language, and verbal cues.106 Where in-person participation enables the fact finder to accurately observe these key features, remote participation may negatively impact perceptions of the credibility of participants.107 Even with the most superior camera quality you do not get the same visual and audio cues through a box on a screen as you do by seeing the full body in person.
Where alleged victims appear as witnesses and give evidence, the use of AVL for their evidence may raise another concern. AVL may have a “dehumanising effect” by creating distance between the witness and the Court, and making it less likely for their account to be believed.108 This is because witnesses may, because of the technology, behave differently than they would in person. Long pauses before answering questions due to connectivity issues could be misinterpreted as hesitance or uncertainty. Witnesses who would feel more comfortable testifying in the physical courtroom, gaining reassurance from familiar faces in the gallery, will be deprived of that support and may be “less confident or forthcoming”.109 The importance of eye contact as a way of securing trust may be lost if the witness flits between looking directly at the camera and down at their screen. To maintain eye contact during a remote proceeding the participant must speak directly to the camera, obstructing their view of the screen where they can actually see the Judge.110 Additionally, whether it be through crime-based television, video games or even the news, today’s media landscape is riddled with violent content. The more people are exposed to violence in the media they consume the more they become desensitised to future violence, reducing their empathy for victims.111 Because we are so accustomed to seeing horrible things on screens, it may be easier for jurors watching AVL witness testimony to be removed from the full effect of that evidence.
Furthermore, research suggests child witnesses are perceived as less credible when testifying by AVL despite appearing more relaxed and providing more accurate accounts.112 This is likely
106 Bandes, above n 103, at 171.
107 At 171.
108 Byrom, above n 81, at 4.
109 Bandes and Feigenson, above n 62, at 1296.
110 Byrom, above n 81, at 4; Bandes and Feigenson, above n 62, at 1296.
111 Stephanie Williams and Annette Clarke “How the Desensitization of Police Violence, Stereotyped Language, and Racial Bias Impact Black Communities” (2019) 5(2) Psychol Cogn Sci Open J 62 at 63.
112 Byrom, above n 81, at 4; Gail Goodman and others “Face-to-Face Confrontation: Effects of Closed-Circuit Technology on Children's Eyewitness Testimony and Jurors' Decisions” (1998) 22 Law & Human Behavior 165.
because jurors cannot fully see the child’s demeanour and their perceptions about the credibility of such witnesses are obscured by inferences about why they are participating remotely.113 In sexual assault cases with witnesses testifying from behind a screen, the jury is instructed not to draw adverse inferences because there is concern that reduced visibility will translate to reduced credibility.114 The impaired visibility inherent in remote proceedings raises equal concerns.
Commentators also express concern about remote witness coaching.115 Unlike in the courtroom where such coaching would be visible, when appearing remotely the Court only sees what witnesses want them to see. Beyond the ambit of the camera, witnesses could be accessing marked-up documents, communicating with someone else in the room or referring to an open chat line on another device.116 While these concerns could be partially mitigated by placing multiple cameras in the room, this would be an additional cost negating what was saved by appearing remotely. Ultimately, under the CRPA, any suggestions of potential witness coaching will be a compelling factor against permitting AVL per ss 5 and 6.117
III. Conclusion:
The physical courtroom plays a critical role in court proceedings. The rules, rituals and building itself symbolise the significance of the proceedings decided within and uphold the principles of open justice. This is crucial for democracy and public confidence in the judiciary. This chapter demonstrated how remote participation may impact these essential features and participants’ capacity to participate as effectively as they would in person. Concerns were also raised that our ability to assess witness demeanour and identify witness coaching is reduced when witnesses appear remotely.
113 Byrom, above n 81, at 4.
114 Evidence Act 2011, ss 106D, 123.
115 Janet Walker “Courts in Lockdown: Lessons from International Arbitration” (2020) International Journal of Procedural Law 10(2) 178 at 189.
116 At 189.
117 See S E Thomas (Chief High Court Judge) “Guidelines for remote participation by witnesses in criminal hearings” (Courts of New Zealand, 2020) at 14, App 2.
Chapter IV: Deficiencies in the CRPA
Chapter III established the essential features of court proceedings that may be negatively affected by remote participation. This chapter will closely examine the CRPA to illustrate that the current legislative scheme does not adequately protect against these negative impacts. Careful analysis reveals that despite recognising remote participation as foreign territory requiring clear guidance, ss 7, 8 and 9 of the CRPA are ambiguous, posing serious risks to defendants’ fair trial rights.
I. Civil Proceedings
Section 7 is intentionally more permissive of using AVL for civil proceedings than the provisions governing criminal proceedings. The resulting enhanced efficiency is particularly useful for procedural matters. However, s 7 has faced criticism for inadequately safeguarding participants’ fair trial rights in civil proceedings, especially where public issues arise. While civil proceedings do not invoke the same degree of serious penalties attributed to criminal proceedings, participant’s fundamental rights are still at stake and ought to attract equal protection. This is particularly the case where the civil proceeding concerns a prisoner in custody, as in the cases discussed later in this part.
In such cases, defendants’ natural justice rights are of particular concern.118 The right to natural justice is confirmed in s 27(1) of NZBORA:
Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law.
Therefore, natural justice principles are engaged when decisions are made under s 7 of the CRPA, as such a determination affects participants’ rights in civil proceedings.
The Privy Council has described natural justice as “but fairness writ large and juridically, fair
play in action”.119 It imposes a duty on all decision-makers to “act in good faith and fairly listen
118 See later discussion of Duffy J’s analysis in Taylor v Manager of Auckland Prison [2012] NZHC 1241.
119 Furnell v Whangarei High Schools Board [1973] AC 660; 2 NZLR 705 (PC) at 718.
to both sides”.120 Two key principles underpinning natural justice are that parties be given adequate notice and opportunity to be heard (audi alteram partem) and the decision maker is disinterested and unbiased (nemo debet esse judex in propria sua causa).121 The applicability and extent of the requirements of natural justice depend on the circumstances and nature of the decision, assessed in light of relevant statutory provisions.
Section 7(2)(b) of the CRPA is particularly vexing because it states a decision-maker may permit AVL “on the application of any participant in the proceeding”.122 Thus, one party could obtain an order requiring their counterparty to appear by AVL against their wishes. This directly challenges audi alteram partem because a participant unwillingly appearing remotely will not feel they have had a fair opportunity to be heard. Consequently, the case law on whether such orders can be granted is divided.
Ultimately, there are two possible interpretations of s 7(2)(b). A broad, unqualified interpretation of “participant” would permit any participant in a civil proceeding to apply for other participants to appear via AVL. This approach was adopted by Allan J in Taylor v Chief Executive of the Department of Corrections (explained below). Alternatively, a narrower interpretation would read “participant” as “implicitly qualified”; any person who meets the s 3 definition can apply for an order, but only regarding their own participation.123 They cannot compel other participants to appear remotely. This second interpretation was adopted by Duffy J in Taylor v Manager of Auckland Prison (explained below). Despite these conflicting High Court authorities, there has been no higher court ruling indicating the preferred approach. However, the below analysis suggests Parliament envisioned a narrow interpretation of s 7(2)(b).
Taylor v Chief Executive of the Department of Corrections concerned civil litigation between the Department of Corrections and Mr Taylor, a self-represented litigant remanded at Auckland
120 Board of Education v Rice [1911] UKLawRpAC 18; [1911] AC 179 (HL) at 182.
121 Combined Beneficiaries Inc v Auckland City COGS Committee [2008] NZCA 423; [2009] 2 NZLR 56 at [11];
See Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) at 141.
122 Section 7(2)(b).
123 Taylor v Manager of Auckland Prison [2012] NZHC 1241 at [44].
Prison.124 Corrections applied to the Court for an order under ss 5 and 7 of the CRPA that Mr Taylor’s future appearances be conducted via AVL.125 Mr Taylor objected to the application because it would not only affect routine hearings where remote participation was reasonable, it would affect all future proceedings, including substantive ones.126
In applying the s 5 criteria,127Allan J noted the nature of the proceedings were the type where AVL would be appropriate and Auckland Prison’s AVL facilities were “satisfactory”.128 Allan J observed the only other party to the proceedings was Corrections, and their rights would continue to be effectively maintained through AVL.129 In assessing whether there were “any other relevant matters” under s 5(d), Allan J emphasised the importance of protecting Mr Taylor’s right to assess the credibility of witnesses and reliability of evidence where such evidence is given orally or by cross-examination. He determined this would not be undermined by remote participation, ultimately concluding Corrections made out a case for Mr Taylor to appear by AVL in future proceedings.130 This was subject to Mr Taylor’s right to apply for an order to appear in person on a specific occasion and there may be grounds to reconsider this finding in future cases involving oral evidence.131 In reaching this conclusion Allan J implicitly endorsed the broader interpretation of s 7(2)(b).45">132
Allan J’s finding brought the gaps inherent in s 7(2)(b) to the fore; requiring participants to appear via AVL in substantive civil proceedings against their will may contravene their natural justice rights because their wishes to physically appear before the Court are not being heard. This is especially alarming in cases like this where Corrections bears the cost of facilitating inmates’ presence in court. This may incentivise Corrections to apply for orders compelling their counterparty to appear remotely.133 While this issue arises in limited circumstances, it remains important given the immense control the State already has over prisoners in custody. These gaps were made apparent before the High Court again in 2012.
124 Taylor v Chief Executive of the Department of Corrections [2011] NZHC 850 at [3].
125 At [2]-[4].
126 At [12].
127 As required by s 7(3)(a) of the CRPA.
128 Taylor v Chief Executive of the Department of Corrections, above n 124, at [13]-[14].
129 At [15].
130 At [16], [18].
131 At [13], [18].
132 Mitchell Fraser “Not Remotely Fair: An Examination of Audio-Visual Links in Civil Proceedings” (LLB (Hons) Dissertation, Victoria University of Wellington, 2018) at 11.
133 Fraser, above n 132, at 1.
In Taylor v Manager of Auckland Prison, Mr Taylor challenged a prison rule prohibiting inmates from smoking tobacco or having tobacco-related items in their possession.134 The prison manager sought an order for Mr Taylor to participate remotely in the substantive hearing.135 Mr Taylor submitted that such order would create “a subclass of persons, prisoners, who by virtue of their status, do not get to physically attend court”.136 Duffy J took this as an opportunity to express her concerns, not only with adopting a broad interpretation of s 7 but also about the functionality of the CRPA itself before providing a reasoned conclusion on why a narrower interpretation is more appropriate.
The greatest problem with s 7 is the Act does not distinguish between civil proceedings concerning private disputes between individuals and civil proceedings raising public law issues. Duffy J asserts civil proceedings involving public law issues, namely cases engaging NZBORA or raising issues of administrative and constitutional law, stand apart from other forms of civil proceedings.137 This is because public law is focused on ensuring compliance with the rule of law.138 As Duffy J explores, public law issues engage multiple principles and rights including the principle of legality, the separation of powers, respect for liberty and legal rights for individuals, “a functioning hierarchy of legal norms” and the rules of natural justice.139 Therefore, civil proceedings in public law often engage legal principles involving fundamental rights “on par” with rights concerns arising in the criminal process.140 This “special and important character” separates them from other civil proceedings to such a degree they require a different presumption for remote participation.141
Arguably, Parliament’s focus on “reconciling AVL with the rights of persons accused of
criminal offences to a fair trial” distracted the House from recognising participants in civil
134 Taylor v Manager of Auckland Prison, above n 123, at [1].
135 At [2].
136 At [13].
137 At [26].
138 At [27]-[28] citing R v Somerset County Council ex parte ARC Southern Ltd [1998] Env LR 111 (HC) at 121. 139 Taylor v Manager of Auckland Prison, above n 123, at [27]-[30] citing Mark Elliot “Judicial Review's Scope, Foundations and Purposes: Joining the Dots” [2012] 1 NZL Rev 75 at 76-77.
140 Taylor v Manager of Auckland Prison, above n 123, at [30].
141 At [31].
proceedings are also guaranteed certain procedural rights.142By lumping civil proceedings in one broad category under s 7 when it is read in the context of the entire Act, the rights concerns are minimised. One of the justifications for the presumption in favour of AVL use in criminal procedural hearings was that no evidence is called. If evidence is relied upon, it is generally given as affidavit evidence and not cross-examined.143 Conversely, the oral evidence and cross- examination in criminal substantive proceedings mean there are greater fair trial concerns at play when AVL is used and thus, a presumption against AVL use was adopted to protect these rights.144
Oral evidence is often called in ordinary civil proceedings involving substantive hearings (ie, proceedings not involving public law issues of the kind identified by Duffy J). Thus, when a Judge is applying the s 5 criteria to determine whether to permit AVL in a civil proceeding, the impact of AVL on the ability to assess witness credibility and reliability of evidence would likely go against its use. However, civil proceedings concerning public law issues are more akin to criminal procedural matters in the sense that evidence is given by affidavit and cross- examination is uncommon. Therefore, in terms of the s 5 criteria, there would not be the same factors counting against using AVL, even though, as identified, the rights concerns are just as serious.145
Civil proceedings generally might be understood not to threaten participants’ liberties to the same extent as criminal matters, but in some cases they might – for example, the outcomes of civil proceedings such as deportation hearings or NZBORA claims.146 The CRPA provides no useful guidance for applying the legislation to civil proceedings that raise the public law issues identified by Duffy J.147 Prima facie s 7 permits AVL for public law civil proceedings where the party bringing the proceeding is prevented from being physically present. But this literal interpretation does not sit well in the context of s 7.
142 Taylor v Manager of Auckland Prison, above n 123, at [26], [59].
143 Courts (Remote Participation) Bill 2009 (107-3) (explanatory note) at 6.; Taylor v Manager of Auckland Prison, above n 123, at [37].
144 Taylor v Manager of Auckland Prison, above n 123, at [37].
145 At [39].
146 At [27]-[30].
147 At [40], [30].
When contemplating whether to allow AVL under s 7, a Judge must consider the s 5 criteria. Notably, s 5(c) requires considering the potential impact AVL would have on “the rights of other parties to the proceeding”. Despite the prison manager defendant being the one making the application, he would be the “other party” (he is the “other” to Mr Taylor, as the party appearing remotely). The Court in Taylor favoured this interpretation of “other parties”.148 Thus, s 5 expressly requires consideration of the defendant’s rights when determining whether Mr Taylor can participate remotely, but there is no corresponding express requirement to consider Mr Taylor’s rights.149 The only “mandatory direction” for the Court to consider Mr Taylor’s rights is the broad direction in s 5(d) to consider “any other relevant matters”.150 As Duffy J commented, it is unsatisfactory that the Act offers these protections to “the other party” but the rights of the person at risk of being compelled to participate remotely, “get no greater attention” than s 5(d).151 Her Honour suggests this indicates Parliament did not turn its mind to how the Act would apply to situations like Mr Taylor’s, and that the language of s 5 does not easily offer itself to the broad interpretation Corrections required.152
Beneath the broader umbrella of natural justice, “the right to a fair hearing, the right to access the Courts and the right that like cases will be treated alike” are all subjugated by the Court’s broader interpretation of s 7(2)(b) in Taylor, as described above.153 If courts require participants to appear remotely, can we confidently say they receive fair opportunity to be heard? When an accused is forced to present their case from outside the courtroom through a screen their ability to ensure they are being heard, that their story is being effectively laid out with all the passion and authenticity it demands, is reduced. If they are prevented from being physically present to ensure effective advancement of their case, we cannot genuinely say they are being given adequate access to the Court. Further, if they are compelled to appear in a different way to the defendant, they are not being heard the same way.154 Duffy J commented that parliamentary sovereignty means where possible, the judiciary strives to interpret legislation consistently with accepted principles and therefore will be “slow to impute to Parliament an intention to
148 Taylor v Manager of Auckland Prison, above n 123, at [42].
149 At [43].
150 At [43]. See the CRPA, s 5(d).
151 At [43].
152 At [43].
153 At [46].
override...[these] where that is not clearly spelt out”.155 Duffy J was concerned the Act does not clearly spell out an intention to authorise the Court to subjugate fundamental rights by requiring participants to appear remotely irrespective of their wish to appear in person. The Explanatory Note and Hansard reports indicate Parliament did not consider the full consequences of the unqualified use of “participant” in s 7(2)(b) on parties in civil proceedings concerning public law issues.156
Duffy J also expressed concerns that despite s 14 of the CRPA stating participants appearing remotely should be treated as if they were physically present, they do not receive the same experience.157 The participant may be disadvantaged when it comes to looking at material introduced by the other party, the geographical distance could stifle inter-party discussion and it is more difficult to direct the Court’s attention to new material.158 Specifically, her Honour referred to the distracting background noise in the current proceeding where Mr Taylor appeared via AVL, as well as Mr Taylor’s difficulty in bringing a document to her Honour’s attention.159 Her Honour emphasised the importance of ensuring the Executive exercise its statutory powers lawfully. Thus, in the context of a public law claim alleging the State has acted ultra vires, the Court must ensure the party bringing the claim has access to the Court and the greatest opportunity to be heard;160
Unless this Court can be sure that those who participate by AVL are not under a disadvantage, it cannot be sure that it is ensuring that those who appear by AVL are receiving like treatment with those who are physically present in the courtroom and, therefore, that the procedure does not detract from their rights to a fair hearing or to access to the courts.
Duffy J was able to distinguish from Allan J’s decision because while security concerns remained, the imminence of the threat was reduced by the numerous trips that had been made without incident. Unlike the former case, cross-examination or oral evidence might be called. Furthermore, Allan J “did not direct his attention to the concerns that [had] weighed so heavily
155 Taylor v Manager of Auckland Prison, above n 123, at [46] citing F Burrows and RI Carter Statute Law in New Zealand (4th ed, LexisNexis, Wellington, 2009) at 320. See also [61] citing R v Secretary of State for the Home Department ex parte Simms [1999] UKHL 33; [2000] 2 AC 115 (HL) at 131.
156 At [62].
157 At [53]-[55].
158 At [55].
159 At [57].
160 At [67], [59].
in [her] decision”.161 Ultimately, Duffy J read s 7 to “go no further than to allow any participant, as defined in s 3, who wants to appear by AVL to apply to the Court for that outcome”.162So a participant can apply for AVL participation only in respect of their own participation, not someone else’s. Her Honour believed this interpretation best respects the established rights and principles the court process must uphold. Any disadvantages arising from appearing remotely will be mitigated by the fact the participant requested to appear by AVL as they will be taken to have accepted such disadvantages.163
Subsequent High Court decisions generally prefer this narrow interpretation. Wylie J followed Duffy J’s reasoning in a judicial review case involving oral evidence.164 In Bell v Chief Executive, Department of Corrections, Palmer J agreed with Duffy J’s interpretation; the Act permits participants wanting to appear remotely to apply to the Court for that outcome.165 His Honour provided further commentary asserting where the case involves a “short judicial hearing” concerning a relatively minor issue it may be appropriate to permit remote participation.166 However, Palmer J suggested a hearing conducted via AVL is more likely to be perceived as unfair where a “significant substantive interest” is implicated, the hearing involves oral evidence or cross-examination, and/or is longer than one day.167
II. Criminal Procedural Matters
Section 8 raises an issue about whether AVL can be used in criminal sentencings where the defendant is not in custody. Both s 8(1), (referring to criminal procedural matters generally), and s 8(2), (referring explicitly to sentencing matters) require the defendant to be in custody for AVL to be used. Thus, AVL was historically interpreted as being available only for sentencings where the defendant is in custody.168 Subsequently, s 8(1A) was inserted to clarify
161 Taylor v Manager of Auckland Prison, above n 123, at [62].
162 At [63].
163 At [63].
164 Smith v Attorney-General HC Auckland CIV-2016-404-1599, 28 February 2017 (Minute) quoted in Taylor v Attorney-General [2017] NZHC 223 at [18].
165 Bell v Chief Executive, Department of Corrections [2020] NZHC 3111 at [17].
166 At [18].
167 At [18].
168 Auckland District Law Society “Submission to the Justice Committee on the COVID-19 Response (Courts Safety) Legislation Bill 2022” at cl. 4.0.3. (ADLS Submission).; Marie Dhyberg QC, President of the Auckland District Law Society, “Memorandum Regarding Remote Non-custodial Sentencing Hearings” (Auckland District Law Society, 19 November 2021). (ADLS Memorandum).
that a participant can appear in a criminal procedural matter via AVL even if the participant is not in custody.169 It states AVL may be used in “criminal procedural matters” if AVL is available, unless a judicial officer or Registrar determines such use would be contrary to the interests of justice.170
The interpretive issue arises in respect of the relationship between s 8(1A) and s 8(2).171 Section 8(1A) applies to all “criminal procedural matters”, which are defined in the Act as all matters where no evidence is called. Therefore, s 8(1A) would capture all sentencing matters (no evidence is called in sentencings). Section 8(1A) does not require the participant to be in custody.
However, s 8(2) seems to impose a narrower requirement for sentencing matters. It states AVL may be used for the appearance of a participant in a sentencing matter if the technology is available, the defendant is in custody, and using AVL would not be contrary to the interests of justice. So the question is whether s 8(1A), applying to criminal procedural matters, also captures sentencings, or whether sentencings are only to be dealt with under s 8(2).
One interpretation of s 8 is that using AVL for non-custodial sentencings is excluded by expressio unius est exclusio alterius; the “explicit mention of one thing implies the exclusion of another”.172 The express permission of custodial sentencings in s 8(2) excludes the possibility for non-custodial sentencings to be captured by the broader scope of s 8(1A). Alternatively, in their submission on the COVID-19 Response (Courts Safety) Legislation Bill the Auckland District Law Society (ADLS) submitted s 8 does not exclude non-custodial sentencings.173 This is because Parliament deliberately inserted s 8(1A) to “broaden the scope of remote appearances to encompass non-custodial participants”. 174 It therefore follows that s 8(1A) should capture non-custodial sentencing. Additionally, they assert this interpretation is consistent with the surrounding legislative scheme because a decision to conduct a non-
169 Digest to the Courts Matters Bill 2017 (285-2), New Zealand Parliament, Digest No. 2556,
<www.parliament.nz> at 5.
170 Courts (Remote Participation) Act 2010, s 8(1A).
171 ADLS Submission, above n 168, at cl. 4.0.3.
172 See ACC v Calver, Trustee of Estate of Trevathien [2020] NZCA 211 at [58] in ADLS Memorandum, above, n 168, at 3.
173 COVID-19 Response (Courts Safety) Legislation Bill 2022 (101-1).
174 ADLS Memorandum, above n 168, at para 9(a).
custodial sentencing via AVL is subject to satisfying the ss 5 and 6 criteria.175 A represented defendant is unlikely to consent to be sentenced remotely without being convinced this criteria is satisfied.176 However, without clarification by Parliament that this is the correct interpretation of s 8, non-custodial defendants will continue to be excluded from using AVL in sentencing.
In a Keynote Presentation at the Annual Criminal Bar Association Conference in 2019, Winkelmann CJ suggested the use of “procedural” in s 8 does not align with its typical use in law. It captures hearings that “may resolve fundamental issues affecting the defendant, such as his or her custodial status” not merely truly procedural matters like habeas corpus.177 Her Honour took particular issue with the fact it captures first appearances. Winkelmann CJ referred to an article by Ian Lambie and Olivia Hyland describing a defendant’s first appearance as the “opportunity of a life time”.178 It is the critical point where issues with mental fitness, illiteracy, or other conditions defendants may try to disguise can be identified, so courts can take necessary precautions to ensure these conditions do not prejudice their fair trial. Her Honour suggested this extends beyond the first few appearances to the point where the defendant has acquired legal representation:179
This is a point in time at which the defendant has self-identified, through his or her offending, as someone in need of intervention. The court house is the place at which this intervention can occur, with the opportunity to work with family, community and government agencies.
The very possibility of intervention depends on the defendant’s physical presence in Court.180 The Court facilitates counsel to fully and meaningfully engage with their client and identify underlying issues.181 Consequently, using AVL in these early stages reduces the scope for
175 ADLS Memorandum, above n 168, at para. 9(b)-(c).
176 ADLS Memorandum, above n 168, at para 9(e).
177 Rt Hon Dame Helen Winkelmann, Chief Justice of New Zealand “Bringing the Defendant Back into the Room”
(Keynote Presentation given at the annual Criminal Bar Association Conference, August 2019) at 7.
178 Ian Lambie and Olivia Hyland “The Opportunity of a Lifetime” [2019] NZLJ 220 in Winkelmann CJ, above n 177, at 6.
179 Winkelmann CJ, above n 177, at 6.
180 At 5.
181 At 5.
critical interventions in defendants’ lives to create a bridge away from offending.182 These concerns were reiterated in the Human Rights Commission’s submission on the Bill.183 Further, in criminal procedural matters where the “liberty of the accused is at issue, or where there is an impact on the accused’s ability to defend the charge” AVL should only be used if the accused consents.184 This unease about requiring an accused to appear remotely against their will is a key concern raised in relation to both categories of criminal proceedings, as discussed further below.
III. Criminal Substantive Matters
The first version of the Bill provided that a judicial officer’s decision to allow AVL in criminal substantive proceedings could be made on his or her own motion or on the application of a party to the proceeding.185 Thus, the Bill did not require defendants’ consent or account for their preferences at all. The accused’s right to attend their own trial was conditional; a Judge could exercise discretion to conduct a substantive hearing without the presence of the accused.186 This attracted tremendous scrutiny from the Opposition asserting this was a complete erosion of the defendant’s fair trial rights, particularly the “right to be present for his or her trial”.187 This aspect of the Bill was amended, and s 9(2) of the Act now makes it clear that, in a trial determining the defendant’s guilt or innocence, AVL must not be used for the defendant’s appearance unless the defendant consents.
The right for the accused to be present at their own trial comes from multiple sources of law. Domestically, section 25(e) of NZBORA explicitly acknowledges the right to be present at the trial and present a defence. NZBORA also recognises the right to be brought before a court following arrest,188 the right to a fair and public hearing by an independent and impartial court,189 and the right to examine witnesses on an equal basis to the prosecution.190 The
182 Winkelmann CJ, above n 177, at 5-6.
183 Human Rights Commission “Submission to the Justice and Electoral Committee on the Courts (Remote Participation) Bill 2010” at cl 6.4.
184 At cl 6.4.
185 Courts (Remote Participation) Bill 2010 (107-1), cl 9(2).
186 At cl 9(2).
187 (29 June 2010) 664 NZPD 12266.
188 Section 23(3); see also s 25(a)-(b).
189 Section 25(a).
190 Section 25(f).
International Covenant on Civil and Political Rights describes the right to be present at trial as the right “To be tried in his presence”.191 Furthermore, this right is encompassed in the principles of natural justice particularly audi alteram partem.192
Chief Justice Winkelmann articulated the overriding issue with subjugating the accused’s right
to be present: 193
...every person has a right to be brought before the court as soon as possible following arrest. This codifies the long standing constitutional principle that acts as a protection for the liberty of the subject. It conceptualises a delivery up of the detained person from the coercive control of the executive to the separate branch of government, the judiciary. Once in the courthouse, the court will check to be satisfied of the legality of the detention and the wellbeing of the defendant. But in the AVL universe, all that is delivered up is the image of the top part of the torso of the defendant. The defendant remains inside the prison, moving only from their cell to a room with a camera.
Depriving the accused of the opportunity to appear in person may increase efficiency and make justice cheaper, but it comes at the cost of the judiciary’s reputation as fair, impartial deliverers of justice. If a defendant believes they stand a better chance by being in the courtroom where the Judge and jury can see their body language more effectively, and vice versa, they must be able to make this choice.194
No matter how stringent court regulations are, things can go wrong in the courtroom, and participants must be able to identify and bring such errors to the Court’s attention. Hon David Parker expressed concerns that the accused will be forever left wondering what they did not see; “the accused has the right to see whether someone in the gallery is showing signs that might be pejorative of the accused”.195 Was the Judge asleep?196 Were jury members alert? Was there an inappropriately cosy relationship between counsel?197 If inappropriate things happen that the accused cannot see an injustice has occurred because they cannot properly
191 International Covenant on Civil and Political Rights, Art 14.3.(d).
192 See the discussion of natural justice above.
193 Winkelmann CJ, above n 177, at 8.
194 (1 July 2010) 664 NZPD 12422. See also Human Rights Commission, above n 183, at cl 2.22.; and Supplementary Order Paper 2010 (149) Courts (Remote Participation) Bill 2010 (107-3) (explanatory note) at 1. 195 (1 July 2010) 664 NZPD 12416.
196 (29 June 2010) 664 NZPD 12268.
197 (30 June 2010) 664 NZPD 12349.
insulate themselves against State power.198 This speaks to the concerns raised in Chapter III that remote participation might not uphold the principle of open justice to the same degree possible in a courtroom. The Judge, plaintiff, counsel, and people in the public gallery – those permitted in the courtroom – will see justice being done but the view of the person who has the most at stake will be limited to wherever the camera is pointed.199
A strong case has been made so far that requiring defendants to participate remotely infringes on their right to be present and significantly reduces their ability to participate in the proceeding. It would be remiss to ignore the counter-argument that allowing defendants to appear remotely does not undermine their fair trial rights because physical presence alone does not ensure effective participation; it merely provides an opportunity to participate.200 But if we accept Winkelmann CJ’s definition of participation as “involving an ability to see what is going on, understand it fully, and to contribute to the hearing”, for a defendant to actually gauge what is happening in the courtroom their livestream of the proceedings will need to show multiple images; “an image of counsel, the judge and the public gallery in which their family sit”.201 Her Honour suggested this would be difficult for even the most “cognitively intact” implying this type of participation cannot possibly amount to participating “effectively”.202
As Dr. Graham Kennedy asserted in the House, the distinction between effective participation and physical participation is arbitrary in criminal trials because “the only effective participation in a substantive criminal trial is physical participation”.203 The State has all the power. With the resources of the Police and Crown Law Office, they can make trials long and expensive while defendants in custody are literally detained by the State with their civil liberties on the line. 204 When we remove their right to be present, we remove one of the few protections the defendant has to ensure the State does not take advantage of this power imbalance and that the trial truly is fair. To be effective, the right to be present must mean “the State cannot so organise the Court system as to engineer the non-participation of the accused”.205
198 (29 June 2010) 664 NZPD 12268.
199 (30 June 2010) 664 NZPD 12366.
200 (29 June 2010) 664 NZPD 12266.
201 Winkelmann CJ, above n 177, at 9.
202 Winkelmann CJ, above n 177, at 9.
203 (29 June 2010) 664 NZPD 12274.
204 (30 June 2010) 664 NZPD 12349.
205 Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at 850-851, in Human Rights Commission, above n 183, at cl 2.20.
The defendant is not the only one affected by s 9(2). There is a long-standing principle that where crime is committed against a person, the victim has a corresponding right to demand an offender be tried, participate in the proceedings and observe the exercise of justice so that they have confidence the process used was fair.206 Requiring defendants’ presence in court to face their accuser and directly see the damage they have caused can be crucial for the victim’s closure. Equally, it is hoped this direct connection between the defendant and their victim serves a ‘wake-up’ call, deterring further criminal behaviour. If the accused can avoid their responsibility in fronting up to court, both at the first instance and then at the trial itself, the victims’ rights are reduced without their consent and an important opportunity for rehabilitation lost.207 Section 9(1)(b) of the CRPA only requires the decision-maker to take into account whether “parties to the proceeding” consent. This would not always include the victim. Victims’ rights may be considered another “relevant matter” under s 5(d) but there is no explicit protection under the CRPA.
The controversy surrounding s 9(2) resulted in two Supplementary Order Papers (SOP). SOP 149 proposed inserting a new sub-clause:208
(2) Despite subsection (1), AVL must not be used in any criminal substantive matter for the appearance of the defendant unless the defendant consents to the use.
SOP 150 proposed to omit clause 9 substituting it for the following:209
(1) AVL must not be used in any criminal substantive matter for the appearance of a defendant, unless the defendant so elects.
(2) AVL must not be used in any criminal substantive matter for the appearance of any other participant unless the judicial officer in the proceeding determines to allow its use for the appearance of that participant in the proceeding—
(a) in accordance with the criteria in sections 5 and 6; and
(b) taking into account whether the parties to the proceeding consent to the use.
206 (29 June 2010) 664 NZPD 12272.; Human Rights Commission, above n 183, at cl 1.5.
207 (1 July 2010) 664 NZPD 12422.
208 Supplementary Order Paper 2010 (149) Courts (Remote Participation) Bill 2010 (107-3) at 1. (“SOP 149”).
209 Supplementary Order Paper 2010 (150) Courts (Remote Participation) Bill 2010 (107-3) at 1. (“SOP 150”).
Both SOP’s sought to protect defendants’ right to be physically present and prevent AVL being used in criminal substantive matters without that defendant’s consent. However, neither SOP was adopted. At the eleventh hour, Mr Power submitted a typescript amendment to cl 9(2):210
(2) Despite subsection (1), AVL must not be used for the appearance of the defendant in a trial that determines his or her guilt or innocence unless the defendant consents to that use.
This amendment has reduced judicial discretion, as judges can no longer compel defendants to appear via AVL for trials determining a defendant’s guilt or innocence. In such circumstances, the defendant must consent to using AVL.
Notably, the final version does not go as far as the SOP’s to make consent a requirement for all criminal substantive matters; it is only required for trials determining the accused’s guilt or innocence. The rationale behind this narrower scope is unclear, however, it may be because s 9(2) intends to strike a balance between preserving defendants’ fair trial rights while simultaneously enabling the wider use of AVL for all types of participants engaging with court proceedings.211 It appears to be a compromise between the two extremes. However, as discussed below, it may not go far enough to safeguard these rights.
By limiting the scope of the consent requirement to trials determining guilt or innocence, the defendant’s fair trial rights remain vulnerable in any other criminal substantive matter. Most criminal substantive matters will be the type protected by s 9(2), however, it is important to recognise the safeguards are not absolute.
A defendant’s consent to appear remotely does not suddenly eliminate the impact remote participation has on their right to be physically present at their trial. It simply means the defendant has (hopefully) been made aware of the potential infringement on this right to be present and that they consent to it. The protection of the defendant’s fair trial will depend equally on the Judge’s ability to assess how remote participation will affect these rights, by
210 Courts (Remote Participation) Bill 2010 (107-3) at cl 9(2).
211 (1 July 2010) 664 NZPD 12415.
applying the ss 5 and 6 criteria. However, it is possible that the Judge may give consent disproportionate weight in this analysis. This is concerning given what we know about consent generally. Research has indicated the defendant population has unusually high rates of cognitive impairments and mental health issues.212 Therefore, they are particularly vulnerable and might not understand the consequences of remote participation. For self-represented custodial defendants in particular, the power imbalance where they are detained by the State who wants them to appear by AVL may mean they do not believe they have a free choice, or worse that their consent is coerced. Thus, the safeguard of the defendant’s consent may be overstated. Instead, the requirement should be fully informed consent after obtaining legal advice (discussed further in the next chapter).
1. Too much judicial discretion?
If the effectiveness of consent is overstated, the ss 5 and 6 criteria must sufficiently safeguard these rights concerns, however, the criteria is not an infallible solution. The Judge is required to “consider” the ss 5 and 6 criteria but it is unclear how they should go about this consideration when different factors point to different answers. For example, if a defendant represents a serious security risk this would be a factor to consider under s 5(d) pointing in favour of using AVL. However, remote participation may impact the defendant’s ability to consult their counsel, participate effectively and comprehend proceedings per s 6(a)(i)-(iii), challenging their right to a fair trial.
Without any clear direction from Parliament about how to balance competing factors, the Judge must determine whether the security threat trumps the preservation of the defendant’s fair trial rights. One judge may read s 5 as a hierarchy of considerations where the nature of the proceeding, quality of AVL and potential impact on the effective maintenance of the rights of other parties carry greater weight than the consideration of “any other matters” in s 5(d). To another, the fact s 6 is titled “additional criteria” may indicate Parliament intended the s 5 criteria to take priority. Ultimately, if the ss 5 and 6 criteria do not clearly point towards
212 Winkelmann CJ, above n 177, at 2-3. See also Tracey Mitchell, Alice Theadom and Elizabeth du Preez “Prevalence of Traumatic Brain Injury in a Male Adult Prison Populations and Its Association with the Offence Type” (2017) 48(3–4) Neuroepidemiology 164.; Flannigan and others “Fetal alcohol spectrum disorder and the criminal justice system: a systematic literature review” (2018) 57 International Journal of Law & Psychiatry 42; and Robertson and McGillivray “Autism behind bars: a review of the research literature and discussion of key issues” (2015) 26(6) The Journal of Forensic Psychiatry & Psychology 719.
granting/denying an application, the Judge may refer to the question of consent to guide their determination, which is not a reliable indicator (as discussed above).
In R v NRS Brown J declined the Crown’s application for the defendant to appear remotely despite the serious security risk.213 Brown J believed the nature of the hearing, significance of the outcome for the “nature of the evidence ultimately to be led at trial” and potentially complex mode for obtaining instructions that could disrupt the hearing weighed “quite heavily” against using AVL.214 This case exemplifies the tension between the two competing values of security and fair trial rights. Without clear guidance, it essentially comes down to what the specific Judge deems more important, inviting subjective value-judgments into the decision-making process, which raises various questions about impartiality and cognitive bias. It also means there is scope for inconsistent granting of applications. It does not sit right in the criminal law, dealing with criminal substantive matters that carry serious penalties for the accused, that there is this much room for judicial discretion.
I have not found any research or commentary on how applications to use AVL are being granted currently, and whether judges are using this discretion to use AVL in ways that abrogate the defendant’s rights. This is an area that deserves more research. Also, the concern is for the future. We are at a ‘fork in the road’ where AVL is becoming increasingly popular, thus, as more applications are submitted and determinations are delivered there is greater opportunity for a problem to emerge. We need to consider how we can address the problems discussed in this chapter now.
The concern that s 9 does not adequately protect defendants’ fair trial rights engenders additional concerns. Parliamentary sovereignty means enactments of Parliament (like NZBORA) are the highest form of law in Aotearoa and the Courts cannot invalidate or refuse to apply such legislation.215 If an individual or body performing a public function, like the Executive, acts in a way that limits a right guaranteed in NZBORA, and this limit cannot be “demonstrably justified in a free and democratic society”,216 such action is unlawful because it
213 R v NRS, above n 99, at [23], [25]-[26].
214 At [23], [25]-[26].
215 Andrew Geddis “Parliamentary Government in New Zealand: Lines of Continuity and Moments of Change”
(2016) 14 ICON 99 at 101-102,110.
216 New Zealand Bill of Rights Act 1990, s 5.
contravenes legislation enacted by Parliament.217 Equally, the Courts are bound to respect the rights contained in NZBORA when carrying out their functions, including developing the common law.218 Contrary to the s 7 Attorney-General Report, there were multiple accusations that the limit of the defendant’s fair trial rights could not be demonstrably justified.219 If the accused disrupts proceedings during the trial the Judge can hold them in contempt, however, there is no such justification for depriving them of their right to be present from the outset.220
IV. Conclusion
The CRPA does not strike the correct balance between encouraging remote participation and protecting the essential features of court proceedings identified in Chapter III. The divergent authorities on the interpretation of s 7 and ambiguity identified in s 8 exemplify the difficulty decision-makers face when applying the Act. Furthermore, sections 7, 8 and 9 all risk contravening defendants’ fundamental rights. Clear legislative guidance is necessary to ensure defendants’ fair trial rights remain a paramount consideration when using AVL and promoting fairer, more effective use in proceedings overall. Chapter V recommends how the CRPA can be amended to achieve this.
217 Andrew Geddis and M. B. Rodriguez Ferrere “Judicial Innovation Under the New Zealand Bill of Rights Act-
Lessons for Queensland?” [2016] UQLawJl 16; (2016) 35(2) UQLJ 251 at 254.
218 Geddis and Ferrere, above n 217 at 254.
219 See SOP 149, above n 208.; The New Zealand Bill of Rights Act 1990, s 7 requires the Attorney-General to report to Parliament where Bill appears to be inconsistent with the Bill of Rights.
220 (29 June 2010) 664 NZPD 12268.
Chapter V: Addressing the Shortcomings of the CRPA
This chapter addresses the practical concerns identified in Chapter IV with applying the CRPA by submitting specific recommendations under each of the three categories of proceedings. It is argued that legislative reform coupled with improved judicial protocols and guidelines will ensure the CRPA enables remote participation to be used as a vehicle for increased efficiency and access to court proceedings without infringing fair trial rights.
I. Civil Proceedings
The judicial disagreement demonstrated by the Taylor Cases, about whether s 7(2)(b) permits any participant in a civil proceeding to apply for an order compelling other participants to appear remotely, or whether “participant” is “implicitly qualified”, could be cured by Parliament amending the provision to make their intention for the narrower interpretation clear. As discussed in Chapter IV, not only does this narrow interpretation fit more comfortably into the wider context of the CRPA, it better protects the accused’s rights.
Unfortunately, it may not be this simple. Despite safeguarding against the wide interpretation’s natural justice concerns, the narrow interpretation presents new issues. Firstly, it means participants can never apply for orders compelling someone other than themselves to appear remotely. While this prevents parties compelling their counterparty to appear remotely, it would also prevent parties from applying for other participants associated with their side of the litigation, like their own witnesses, to appear remotely. These participants would have to apply themselves, imposing unnecessary burdens.
Secondly, and most importantly, because the Act does not delineate procedural and substantive civil proceedings, the narrow meaning would prevent Corrections from applying for their counterparty to participate remotely in civil procedural matters. Unless the prisoner applied to appear remotely, they would have to be physically present for even the most straightforward civil procedural matters. Of course, a judicial officer could still make an AVL order “on their own motion”,221 however, it is unclear how frequently this discretion would be used.
221 Courts (Remote Participation) Act 2010, s 7(2)(a)
Consequently, s 3 should be amended to distinguish between procedural matters and substantive matters in civil proceedings by mirroring their criminal counterparts. Section 7 will need to be redrafted accordingly. To promote consistency, s 7 should adopt the same presumptions for/against AVL that the Act attributes to procedural and substantive matters in the criminal context. Further, to address Duffy J’s concerns the reformed s 7 should state that any participant may apply for an order to appear remotely in a substantive civil proceeding, but only regarding their own appearance or on behalf of another participant where appropriate, such as the applicant’s witnesses.
This revised s 7 would ensure the accused’s rights are not sacrificed by the aim of improving efficiency. Instead, a more proportionate balance is reached. The presumption in favour of AVL in civil procedural matters would facilitate the resolution of these matters cheaply and efficiently while the opposite presumption for substantive matters would simultaneously protect the accused’s right to be present at their proceeding by making it the default. The accused could still apply to participate remotely, or the Judge may make a determination on their own motion, but this re-drafting ensures the latter is the exception, not the rule.
Additionally, the requirement to consider the potential impact of AVL on the rights of “other parties” to the proceedings in s 5(c) should be replaced with “all parties”. Section 5 would not only expressly require the Judge to consider the other party’s rights, it would also ensure the rights of the person at risk of being compelled to participate remotely receive equal consideration. As described in Chapter IV, this revision would protect the rights of the accused in situations like Mr Taylor’s where Corrections is making the application without usurping Parliament’s intention or conflicting with the broader legislative scheme.
II. Criminal Procedural Matters
As examined in Chapter IV, the interplay between ss 8(1A) and 8(2) makes it unclear whether AVL can be used in criminal sentencings where the defendant is not in custody. The most effective way to reconcile this issue and promote consistency is by amending s 8 to make it incontrovertible that both custodial and non-custodial sentencing can occur remotely. This could be achieved by adopting the ADLS proposal in their submission on the COVID-19 Response (Courts Safety) Legislation Bill.222
The ADLS proposed amending the definition of “criminal procedural matters” to read “any matter, in a criminal proceeding, in respect of which no evidence is to be called, including (but not limited to) taking of pleas”.223 They also recommended amending s 8(1A) to read:224
(1) Except when a judicial officer determines that the use of AVL is contrary to the interests of justice, the use of AVL must be allowed for the appearance of a participant in a criminal procedural matter if –
(a) AVL is available; and
(b) the participant is not in custody; and
(c) the participant requested the use of AVL.
The Judge would begin by assessing whether using AVL would be contrary to the interests of justice. If not, it must be allowed if the technology is available, the participant is not in custody, and that participant has requested to participate remotely. This amendment makes the condition of the participant requesting AVL mandatory before it “must” be used and therefore, assigns greater weight to whether there is consent. “Used” is replaced with “allowed” to reflect that the Judge is merely granting the application rather than compelling the defendant to appear via AVL. This is also reflected through the adoption of the mandatory expression of “must” instead of “may”.
222 ADLS Submission, above n 168, at cl 4.0.4.
223 ADLS Submission, above n 168, at cl 4.0.7(a), (emphasis added).
224 ADLS Submission, above n 168, at cl 4.0.7(b), (emphasis added).
The final amendment ADLS proposed was to s 8(2):225
(1) Except when a judicial officer determines that the use of AVL is contrary to the interests of justice, the use of AVL must be allowed for the appearance of a participant in a sentencing matter regardless of whether the participant is in custody or not so long as-
(a) AVL is available; and
(b) the participant consented to the use of AVL.
This amendment also replaces “may” with “must” and “used” with “allowed”. However, the confusion about whether the provision covers non-custodial participants in sentencing matters is resolved by the qualification that if AVL is available and the participant consents, it must be allowed regardless of whether that participant is in custody.
The ADLS’s proposed revision of s 8 is consistent with the surrounding legislative scheme and ambition for inserting s 8(1A) to clarify the confusion with non-custodial sentencings making it desirable. Furthermore, it would be an opportunity to facilitate a growing desire among defendants to use AVL to deal with sentencing matters more efficiently.226
Parliament considered the ADLS submission but determined the “operational changes” required to implement these amendments could not be achieved in the time available because the COVID-19 Response (Courts Safety) Legislation Bill was being passed with urgency.227 Most sentences that remote sentencing could apply to require sentencing orders to be served personally to the convicted person. Proof that an order has been served is a prerequisite to its enforcement. When sentencing occurs remotely the convicted person will not be in the courtroom therefore, serving orders would be an arduous process. There was concern the convicted person may exacerbate these difficulties to avoid being served and delay the start of
225 ADLS Submission, above n 168, at cl. 4.0.7(b), (emphasis added).
226 ADLS Submission, above n 168, at cl 4.0.2.
227 Justice Committee “Departmental Report for COVID-19 Response (Courts Safety) Legislation Bill 2022”
(Ministry of Justice, March, 2020) at 23.
their sentence.228 Options were considered to manage such concerns, but no conclusion was reached due to the time pressures. Notably, Parliament did not completely dismiss the potential of reforming s 8; they simply did not have time to fully scrutinise the proposal. Therefore, it is possible that if the proposal came before Parliament today the expressed concerns could be addressed through proper scrutiny and this reformed s 8 could find its way into the law.
Winkelmann CJ’s concern that first appearances fall within the definition of criminal procedural matters and therefore, have a presumption for using AVL could be mitigated with a minor modification to s 8 to read “...excluding first appearances”. While this does not completely exclude AVL for the first three appearances like Winkelmann CJ implied, it preserves the opportunity for crucial intervention from the outset, which is a better protection than currently provided for.
III. Criminal Substantive Matters
As identified in Chapter IV, the overarching concern with s 9(2) is that it might not adequately protect the defendant’s right to be present at their trial. Consequently, it is proposed s 9(2) be amended to read:
(1) AVL must not be used in any criminal substantive matter for the appearance of participant unless a judicial officer determines to allow its use for the appearance of that participant in the proceeding—
(a) in accordance with the criteria in sections 5 and 6; and
(b) taking into account whether the parties to the proceeding consent to the use.
(2) Despite subsection (1), AVL must not be used in any criminal substantive matter for the appearance of the defendant unless the defendant consents to the use, and such consent is fully informed after obtaining legal advice.
228 Justice Committee, above n 227, at 23.
This amendment incorporates s 9(2) of SOP 149 with an additional modification regarding consent. Requiring defendants to consent to AVL in “all criminal substantive matters” reduces the impact on the defendant’s fair trial rights because defendants involved in criminal substantive matters that are not trials determining guilt or innocence will also have to consent to AVL. This improved s 9(2) strikes the correct balance between safeguarding defendants’ fair trial rights whilst still enabling the increased use of AVL for all types of participants engaging with the Court.
This recommendation is preferable to the current s 9(2). It recognises that viewing the defendant’s consent as the fundamental safeguard against the Court requesting defendants to appear remotely is problematic. We cannot necessarily equate consent with ensuring fair trial rights are upheld. The reimagined s 9 would require “fully informed consent after obtaining legal advice”. Before defendants can be deemed to have consented, they must obtain legal advice detailing the full repercussions of appearing remotely on their fair trial rights. This ensures the defendant fully understands what they are consenting to and limits concerns about vulnerable defendants being coerced into giving consent or not fully appreciating the rights at risk. This revision imposes the additional requirement that the Judge must be convinced that this consent is fully informed.
The infinite number of possible cases where AVL could be deployed, and fact that a Judge’s ability to assess how remote participation will impact defendants’ rights per ss 5 and 6 is the main safeguard in the CRPA, means greater specificity is required. It is burdensome to require judges to engage in such a general analysis, without clear guidance to assist them. While the criteria in ss 5 and 6 purport to do this, the considerations identified are insufficiently secure to structure judicial evaluation of the facts because there is nothing guiding Courts when these factors conflict.
To reduce the degree of judicial discretion ss 5 and 6 could be replaced with an exhaustive list of factors to consider in order of priority or relative weight. Alternatively, a new provision could be inserted entirely, detailing what factors are considered the most important and thus, should be prioritised. As considered in Chapter IV, this could include clarifying whether the positioning of “any other matters” in s 5(d) means anything captured by this assessment carries
less weight than s 5(a)-(c) when balancing competing factors. The process would be more of a ‘box ticking exercise’, limiting the opportunity for judges to import their beliefs about what factors to prioritise and reducing the degree of judicial discretion required.
However, the idiosyncrasies of remote participation may mean such knee-jerk legislative reform is impractical; a degree of discretion is necessary for quantifying the effectiveness of AVL in specific cases. Schneider’s “rule-failure” discretion justifies discretion when circumstances are so variable, complex, and unpredictable that Parliament cannot devise a rule to guide decision-makers to correct results in most cases.229 Remote participation is a contemporary phenomenon. The continuously evolving nature of technology makes it difficult to predict what remote participation technology will look like in the future thus, legislation governing remote participation must be flexible. A level of discretion accommodates this need for flexibility. However, the seriousness of the rights concerns at stake means this discretion cannot be unfettered. Instead, the concerns with ss 5 and 6 could be mitigated by strengthening existing guidelines for dealing with AVL in courts.
The Ministry of Justice have developed two separate AVL Operating Guidelines for the District Court and Senior Courts designed to serve as an “operational and reference guide for court staff” using AVL for remote participation of prisoners.230 Despite being independent documents, they are relatively similar outlining the procedural steps to enable effective AVL use.231 The District Court guidelines are far more detailed, although this is likely because they were published more recently. The Senior Courts Guidelines refer to “prisoners” rather than the broader “participants”, and the District Courts Guidelines refer to “audio-visual services” instead of AVL. As noted in Chapter II, there is also a Judicial Protocol guiding decision- makers when presiding over proceedings using AVL in the District Court or Senior Courts.232 However, this has a limited application to proceedings involving prisoners appearing via AVL in these specific courts.
229 Carl Schneider “The Tension Between Rules and Discretion in Family Law: A Report and Reflection” (1993)
27 Fam.L.Q. 229 at 235.
230 Ministry of Justice “AVS- Court to Custody, Operating Guidelines for District Court” (2018) at 1.; Ministry of Justice “Operating Guidelines Senior Courts AVL- Court to Custody” (2017).
231 For example, they both state the protocol for dealing with technical issues, how the remote participant should appear in court (courtroom participants should be able to see the remote participant via the television screens in the court) and how media can apply to access the AVL feed.
232 Judicial Protocol, above n 58.
While these guidelines and protocols provide important operational guidance to court staff and judges they do not provide all guidance necessary when dealing with AVL. Because their application is restricted to proceedings concerning remote appearances of prisoners, no guidelines exist for proceedings concerning participants who are not prisoners. It is recommended the two separate guidelines are integrated and updated to provide guidelines for all court proceedings using AVL. Streamlining the guidelines is logical because they repeat the same procedural guidance and any material differences unique to a specific court could still be articulated. Having different rules based on court levels is unnatural because the same considerations should be engaged regardless of where matters are heard. The defendant’s fair trial rights are not suddenly less important before the High Court than in the District Court. The Judicial Protocol should also be updated to apply to all proceedings using AVL instead of just prisoners.
Revising these documents is desirable because it produces a single, clear point of authority on conducting court proceedings involving remote participation to refer to when the CRPA is unclear. This will reduce the risk of the accused’s rights being inadvertently undermined by unclear processes. This would also promote the CRPA’s purpose of increasing AVL use because having clear, authoritative guidance may reduce judicial hesitancy towards using AVL in proceedings. On a practical level, because the update is founded on the existing guidelines and protocols it will be relatively straightforward.
It could be argued this ‘cookie-cutter’ justice approach is ill-suited to a very fact-specific area of law. As we cannot predict every scenario that may come before the Court, there will be circumstances where judges must depart from the guidelines. Further, if a Judge can just disregard the guidelines as they please, do they really cure the deficiencies of the CRPA? However, I would argue that because they are ‘soft law’, not rigid legislative requirements, guidelines enable the necessary fluidity to depart slightly when justice demands. We want some discretion to be retained so the law can evolve alongside the technology used for remote participation. The judiciary is relied upon to apply legislation to uphold Parliament’s intent. Therefore, in 99 per cent of cases we can expect the guidelines will be followed, providing some constraint on judicial discretion. In the small 1 per cent where they are not followed, such departure would have to be justified.
As this is a continually evolving area, the Ministry of Justice and the Courts themselves should supplement guidelines with training for conducting remote proceedings. This could be achieved through seminars or online training modules and address the concerns that come with remote participation. For example, alerting judges to non-verbal cues to look out for that indicate the defendant is struggling to participate and how to ensure consent is fully informed. As identified in Chapter II, there is a clear trend towards AVL and remote participation having an increased presence in court proceedings, therefore, this training should be a recurring requirement every two years to ensure the judiciary stays up to date with technological developments and social attitudes surrounding remote participation.
IV. Conclusion
This chapter has suggested several amendments to ss 7, 8 and 9 of the CRPA to remedy the shortcomings identified in Chapter IV. It is recommended legislative reform is supported by strengthening the existing Guidelines and Protocols for AVL in Courts to promote consistent use. These recommendations strike the correct balance between encouraging remote participation and protecting participants’ fundamental rights, enabling the CRPA to achieve its desired effect.
Chapter VI: Conclusion
AVL undoubtedly has a place in the legal system. As explored in Chapter II, multiple steps are being taken to accommodate the increased presence of technology in court proceedings. However, remote participation must be embraced while remaining true to what a court is “in a society governed by the rule of law”.233 This dissertation has demonstrated that the courtroom itself creates a physical environment optimal for the delivery of justice. As explored in Chapter III, this means there is a lot at risk when we move beyond the courthouse walls. This carefully conditioned environment upholds the principles of open justice, promotes procedural fairness and achieves equivalency between the significance of proceedings and the justice response. Any change must offer the same standard of safeguards. These essential features of courts provide a benchmark to assess whether the CRPA adequately governs remote participation in court proceedings.
Unfortunately, as argued in Chapter IV, the CRPA currently misses the mark. Notably, the Taylor cases demonstrated the broad categorisation of civil proceedings and inconsistent interpretation of s 7(2)(b). It is unclear whether Parliament intended to authorise the Court to require a participant appear by AVL irrespective of their wish to appear in person, undermining their natural justice rights. While criminal procedural matters hold the most promise for effective remote participation, s 8 does not clearly articulate whether AVL can be used in criminal sentencings where the defendant is not in custody. Further, s 9(2) challenges the accused’s right to be present at their trial in criminal substantive matters and it is submitted that the ss 5 and 6 criteria are insufficient safeguards for these fair trial rights. Minimal guidance within the CRPA about how to deal with conflicting factors means the Judge retains lots of discretion, which may be inappropriate given the significance of the rights engaged.
Therefore, as articulated in Chapter V, the consequences of inaction warrant legislative reform to ss 7, 8 and 9 of the CRPA. This reform should be supported by refurbishing the existing Operational Guidelines and Judicial Protocol to guide the judiciary when ss 5 and 6 conflict. The cost of any time taken to amend the legislation is justified by the consistency such reform would bring to the efficacy of the CRPA. Most importantly, a reimagined CRPA would strike
233 Legg, above n 72, at 184.
the correct balance between enabling AVL technology to be used to deliver high-quality,efficient outcomes without sacrificing participants’ fair trial rights.
The legal system is entering a new era where technology will undeniably have a leading role. We are at a critical juncture where we still have the power to choose how to embrace technology. We must take advantage of this rare opportunity and safeguard the essential features of our court system before they are lost with the inevitable rise in remote participation. The challenge for us is ensuring the embrace of remote participation achieves the objective of improving access to justice while maintaining the rule of law. As Venning J cautioned, this path ahead is not straightforward or “free of potholes”, but reforming the CRPA is an important step along that challenging road.234
234 Venning, above, n 5, at [61].
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