How would you feel if your upcoming criminal case could be dealt with, at least in part, online, without you having to step foot inside a courthouse?
Not only can going to court be a confronting and stressful experience, it can also be very time consuming.
You or your lawyer may only be in front of the magistrate for a matter of minutes, but may have to wait an hour or more for your turn – causing unnecessary expense.
The NSW court registry is gradually going online – more and more forms can be submitted over the internet instead of requiring a hard-copy.
Now, court procedures may be heading the same way.
New trials are exploring the possibility of online courts for civil matters, with a view to eventually extending the feature to criminal cases as well.
The proposal aims to improve the efficiency of the court system – online courts would mean no travelling and no hanging around courtroom waiting for your case to come before the magistrate.
It will first be trialled in the Downing Centre Local Court’s civil division later this year at a cost of $9.2 million and, if successful, is likely to be implemented in other NSW courts too.
The 2011 Pilot Program
There was an online trial for criminal cases back in 2011, but it was eventually discontinued.
The pilot program was trialled in Downing Centre Court criminal cases where defendants were legally represented and charged with serious indictable offences, which are those that carry a maximum penalty of five years imprisonment or more.
The procedure of “committal for trial” usually takes place in a courtroom, but the trial enabled lawyers and magistrates to deal with short court dates via a web-based message board.
These procedures included:
1. Brief service orders;
2. The fixing of case conferencing timetables;
3. Continuance of bail; and
4. Bail variation applications by consent.
The trial initially received positive feedback and was extended for some time, but was eventually discontinued on 31 December 2011, after only 270 matters were dealt with.
The 2012 Local Court Annual Review noted that while 80% of those who used the system said they would do so again, the participation rate by lawyers was very low.
Despite this, the possibility for future pilots was not ruled out.
Technological Innovations in Other States
In Australian courts, defendants in custody are either transported to court to appear personally, or appear via Audio Visual Link (AVL).
If they are on AVL, they will be seen on a large screen in court. They will also be able to hear and see what is happening.
In South Australia, a recent trial explored the use of “desktop AVLs”, which allowed lawyers to appear on a court screen from their offices.
Clients could either be excused from court if legally represented, or appear via AVL together with their lawyer.
The pilot began in mid-April 2015 and is receiving positive feedback from lawyers, clients and magistrates.
A strong advocate of the scheme is the Chief Magistrate of South Australia, Elizabeth Bolt, who notes that “there is a reduction in travel time and waiting time within the court precinct…”
Ms Bolt has, however, acknowledged that “there may be concerns expressed about the use of desktop AVL. All technology can challenge a culture and lead to initial inefficiency.’’
Western Australia already has online court facilities similar to those being trialled in NSW, and Queensland has experimented with virtual courtrooms in a mock-trial using video conferencing in May this year.
Online Justice: A Good or Bad Idea?
There is a lively debate about whether the move towards online courts is desirable.
The time and cost savings are certainly appealing: if your lawyer charges by the hour, efficient court proceedings could translate into much more money for the client, and less for the lawyer.
On the other hand, traditionalists believe that nothing can substitute for all players being present inside a courthouse at the same time, especially in substantive proceedings like sentencing hearings and defended hearings.
Indeed, it is not hard to see that the advocacy skills of lawyers in a courtroom could be altered if they simply appeared on a screen, and that magistrates and judges might find it more difficult to assess the demeanour and credibility of witnesses.
There is also an argument that the close physical proximity of parties is more conducive to negotiations, and may enhance the prospect of settling cases.
On the other hand, there are a range of situations where witnesses already appear on video screens; including hearings involving child witnesses and other vulnerable persons, and these cases generally run effectively and efficiently.
It is also likely that the use of online courts will dramatically cut the overall length of criminal proceedings, benefiting all parties and the criminal justice system as a whole.
It could additionally be pointed-out that most negotiations between the prosecution and defence occur in-between court dates, and that there is no great benefit in having everyone attend the courthouse; especially when it comes to short, uncontroversial court dates.
Perhaps a middle ground might be best: that non-substantive court dates, such as ‘mentions’ to adjourn cases and to get hearing dates, should be done online, while substantive cases such as defended hearings (where witnesses attend court and are questioned) should be done in person.
What are your thoughts?