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Barrister Insights on the NSW Virtual Court Experience

The rapid introduction of virtual courts throughout Australian State and Federal jurisdictions in response to the COVID-19 pandemic has required both counsel and judiciary to adapt their approach to conducting hearings and other court matters.

This article is based on the reflections of a number of prominent Sydney barristers after their participation in a variety of recent online hearings.

“Given the inevitability that we will have to deal with this system more frequently in the weeks to come, I thought I would share my impressions and some tips that occurred to me in case they assist other members of the bar”

The NSW Supreme Court  has rapidly adjusted to the requirements of  virtual courts, a full list of announcements regarding modifications can be found here. The Supreme Court is utilising the Cisco Webex software for their hearings.  The software is based on Cisco Meeting and is web-based (if you are able to download the Cisco Meeting App you can use that). The judge’s  associate sends a link and it’s just a matter of typing in your name and clicking join.

Likewise, the Federal Court of Australia has adapted its operations to transition to telephone and video hearings using Microsoft Teams software.

Reflections on Virtual Courtroom Hearings

The below reflections are based on recent appearances in virtual courtrooms.

Use of Microphones and Sound.

The virtual courtroom pales in comparison to in-person appearances, but overall it has worked well. The biggest issue is with non-speakers having their microphones on, causing the sound to reverberate and feedback. The judge was appearing from an empty courtroom, and the microphones were all live. I am led to understand that it is not possible to isolate the judge’s microphone and mute the others. I think the empty room is partly responsible for the problems that we had with reverb. The best solution to the reverb was to speak in smaller phrases, pause and wait for it to die down, and then continue.

Video and Images

There are a number of ways you can lay out the images from other people’s webcams in your screen. The other interesting consequence of the Court’s microphones being always on was that the ‘speaker large’ or ‘speaker only’ video layouts didn’t work. The consequence of those layouts being used was that the judge was permanently considered to be the speaker, regardless of who was actually doing the talking. I found that the ‘all equal’ layout, which showed all cameras equally, worked the best. In that layout your own camera disappears. It can be brought back by hovering your mouse over the screen. I found that it was helpful to occasionally check my appearance in the camera, just to make sure I was looking in the right direction etc.

Screensharing

On the layout next to the mute microphone button is a ‘share screen’ button. I think it’s a bit concerning that the button is available to counsel or witnesses. I was taking notes during the hearing and I would be very concerned if I inadvertently displayed them to the Court, my opponents and the witnesses.

Short Appearances

I appeared in a short matter as part of a list. I logged on at the designated time, but the first matter hadn’t finished – when you arrive you simply appear on screen. Disconcerted everyone! Not like ducking into the back of the court and waiting. The judge requested I call back in 10 minutes. Attempting to reconnect I found there were many users trying to get onto the system, it took 4 attempts to get before the court.

About 2 minutes into proceedings the image froze, and the judge did not move for 10 minutes. The video remained frozen, but the audio worked well and that was allowed for the matter to be dealt with.

Advocacy and Cross-Examination

Appearing in a virtual courtroom does change the dynamics of the cross-examination. Witnesses are unlikely to feel so exposed, or potentially intimidated, if their questioner is behind an electronic wall. Although they might be more candid, for that reason. When my opponent cross-examined, I stayed on mute with my finger on the unmute button when I wanted to object. Jump in quickly because of the delay!

Dealing with Documents

We had a tender bundle which worked as it usually did. Stray documents for cross-examination were circulated by email. I emailed my outline of closing submissions to the judge and the others soon before doing closing. The judge seemed happy with that.

Recently the courts have issued updated instructions on submission of court books on USB sticks and many counsel have adapted their practice to using electronic briefs and supplying the court with PDF court books.

Final Reflections

It is a system that relies on the co-operation of counsel. I feel grateful to work among colleagues with whom co-operation is a given. Although a way to conduct ‘hallway discussions’ between opposing counsel to resolve issues has yet to be solved.Our system of justice seems very robust, at least in its procedures and the integrity of our court system is being preserved.

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