Where do the Courts draw the line to allow audio visual links in the courtroom?

It is costly and often inconvenient for a witness to be physically present in the courtroom to give evidence orally before a court in proceedings. But if a witness is required for cross-examination on their Statement of Evidence, then they must be present in the courtroom to give their evidence and be cross-examined upon it.

To facilitate the use of audio visual technology into the courtroom, the New South Wales State Government and other State Governments, and the Commonwealth Government have introduced a procedural law (quoting the NSW legislation) to allow the court to direct that a person give evidence or make a submission to the court by audio link or audio visual link from any place within or outside New South Wales, including a place outside Australia (s. 5B(1) Evidence (Audio and Audio Visual Links) Act 1998 NSW).

This law is made subject to court procedural rules, which in NSW are found in the Uniform Civil Procedure Rules 2005 UCPR Rule 31.3(1) which provides - If the court so orders, evidence and submissions may be received by telephone, video link or other form of communication.

Factors in exercise of the discretion in commercial litigation

The Court’s discretion to allow evidence to be given by audio visual link is wide. The Courts assess a number of factors to decide whether it is in the interests of the administration of justice for the court to make the direction (s. 5B(3)).

In this article, the factors which are weighed up to allow the use of audio visual links for three different categories of witnesses in civil proceedings are examined.

Witness category 1 – the employee of a party

In the recent decision of the Supreme Court of New South Wales in Commonwealth Bank of Australia v Thompson (unreported, but see link), the Commonwealth Bank applied for an order that the evidence to be given by Mr Di Gregorio, the officer of the Bank responsible for the conduct of the relevant file, be taken by audio visual link from a conference room of the Bank in Perth Western Australia.

Justice Garling refused the Bank’s application for these reasons –

  1. The Bank commenced the proceedings in the Supreme Court of NSW and it chose Mr Di Gregorio as its witness. Therefore it has little cause for complaint if it is not convenient for its employee to fly across Australia to give evidence in a two day case.
  2. Mr Di Gregorio’s workload would not be prejudiced by his personal attendance.
  3. Mr Di Gregorio’s evidence went beyond the documentary evidence to be proved to support the Bank’s claim. It was proposed that he would give evidence in reply to the expert evidence relied upon by the defendants, and be cross-examined upon it. The judge was influenced by the dynamic nature of any case in reply, the possibility the evidence will be controversial, and the likelihood his evidence will be the most significant evidence in the case for the Bank.
  4. Because of the issues raised and the role of the employee in the proceedings, it would be unfair to the defendant to require them to cross-examine Mr Di Gregorio by audio visual link.

Witness Category 2 – foreign witness with crucial evidence, unwilling to come to Australia

The leading decision in NSW on the use of audio visual links in civil proceedings is ASIC v Rich [2004] NSWSC 467. In this case, Justice Austin, sitting in the Supreme Court of NSW, considered an application made by ASIC for evidence by audiovisual link by two witnesses who resided in London, and who were unwilling to give evidence in Sydney. This application was made as an alternative to a letter of request to require the witnesses to attend an examination in London by Australian counsel in the presence of the trial judge as examiner.

Justice Austin refused ASIC’s application, and made comments on the general approach to be taken by a court, then gave his reasons –

  1. The evidence is of critical importance to ASIC’s case. Unless there is a good reason for choosing it (such as, for example, a large difference in costs or the illness of the overseas witness), the witness should attend. In this case, his honour said that if the court can anticipate that the cross-examination of the witness will be lengthy and complex, and that the credit of the witness will be challenged, that combination of factors is likely to persuade the court against audiovisual evidence.
  2. The assessment of credit will depend on the witness’s responses to questions based on documents shown to him by the cross-examiner. In this case, his honour said that an audiovisual procedure would put the cross-examiner and the court at a real disadvantage in dealing with credit in this case.
  3. The management of documents in cross-examination has two aspects – the first, delays as witnesses find the tender bundle volume and seek to find page numbers, the second, ensuring copies of the documents are kept safe and confidential. In this case, his honour said that difficulty in management of a six-volume tender bundle and 12 volumes of exhibits was likely to be greater than most cases.
  4. Technological difficulties in terms of variations in format and time lapses. It was not necessary to examine these difficulties to reach a conclusion in this case.
  5. The length of cross-examination is less important than whether the witness is located in a different time zone from court, which would create practical difficulties in operating audiovisual facilities over an extended length of time. In this case, his honour said that taking cross-examination in Sydney during the morning and in London during the evening of a hearing day would be too arduous a schedule for the legal representatives and the court.
  6. Is audiovisual evidence “for practical purposes, the same” as viva voce evidence? In this case, it was said that it was unnecessary and unhelpful to argue this, firstly because current-generation electronic aids save time and money, and secondly, a court can always decide to proceed by the viva voce method.
  7. The cost was a consideration. If there was an enormous discrepancy between the cost of using audiovisual facilities and the travel, accommodation and other costs of moving the court to London so that the witnesses could be examined by the trial judge as examiner, then this would be significant. In this case, his honour said that both methods were ferociously expensive, and therefore hearing the witnesses viva voce in London was the better alternative.

Witness Category 3 – foreign expert, limited evidence

In the decision in the Supreme Court of New South Wales of King v Rail Corporation New South Wales [2012] NSWSC 832, the defendant applied for an order that the evidence to be given by Mr Muttart, an expert witness, be taken by audio visual link from Connecticut in the United States of America.

Justice Garling made an order that the evidence of Mr Muttart be taken by audio visual link for these reasons –

  1. The process of using an audio visual link would not be unfair to the plaintiff.
  2. The evidence is of a limited compass, the issue is not central and the cross examination would be not be of undue length nor be one which challenges credit.
  3. The balance of costs and convenience strongly favours the making of an order.

His honour noted that the experts would need to confer jointly and produce a joint report setting out where they agreed and where they disagreed. He also noted that the trial judge could always revoke this order.

What is the status of evidence given by audio visual link?

 The Evidence (Audio and Audio Visual Links) Act 1998 NSW effectively deems the remote location occupied by audio or audio visual link established in accordance with the Act to be part of the courtroom or other place at which the court is sitting (s. 5C(1)).

Therefore the laws relating to evidence, procedure, contempt of court or perjury apply to the giving of this evidence (s. 5C(2)).

Conclusion

With the increasing familiarity of the judges with internet technologies such as Skype for video conferencing and discussions, the giving of evidence by audio visual link will become increasingly common in commercial litigation.