Technology in the Court in its 50th Year

Technology in the Court

in its 50th year

By Michael Gething (Judge) and Stephan van Heerden (Associate)

It is perhaps fitting that an article on technology in the District Court over its 50 year history be written by authors representing the current and future generations of the Court.

According to the District Court website (which in the year 2021 is an acceptable method of ascertaining the truth… or at least one version of it) the District Court of Western Australia was established on 1 April 1970 upon enactment of the District Court of Western Australia Act 1969 (WA). Notwithstanding the date, this occasion was no practical joke. The needs of the rapidly expanding population of Western Australia required the establishment of an intermediate court to alleviate some of the pressure being experienced by the local courts and the Supreme Court. The history of the Court is relatively well known, and if it’s not known, that information is relatively easy to access, all thanks to technology. At this point we think it is quite appropriate to look at what the “technosphere” looked like in the 1970s.

According to Wikipedia (a whopping 30 years younger than the District Court), the world’s first general microprocessor, the Intel 4004, came out in November 1971. A microprocessor is the brain of any computer or computer like device. The Intel 4004 had a clock rate of around 750kHz. The most recent iPhone 12 Pro, has a processor speed of around 2990 MHz, which is about a million times faster. At this point we would have loved to have said something about Moore’s Law,

as it combines the word “law” and something related to computers, but we digress (you can Google it later). Allegedly, the first email was sent in 1971, on ARPANET (a precursor to what we now know as the Internet). While the inventor of email itself is disputed, the first message sent across a network, was sent in the 1970’s. The first mobile phone was invented by Motorola in 1973. The DynaTAC 8000x weighed almost 1.2kg and was about 30cm long. Two years later, in 1975 Kodak invented the first self-contained digital camera. It boasted a 0.01 megapixel picture resolution, which is about the same resolution we seem to get some days on a video link to Hakea!

When the Court opened its doors in 1971, everything was done in person and on paper. Ink stamps signified the imprimatur of the Court. Typewriters and telephones were about as much technology as there was to be had. Over time, as technology such as fax machines and photocopiers were developed, they were adopted by the Court (if current experience is anything to go by) as a late rather than early adopter. In the 1990s the use of video conferencing in a court hearing became possible, permissible and commonplace. In 1996 video systems with the capacity to conference intrastate, interstate and overseas were installed in the Central Law Courts where the District Court was then housed. Amendments to the Evidence Act 1906 (WA) in 1998 enabled evidence to be taken in criminal cases by video link and for offenders to be sentenced by video link. Since then it has become routine for people in custody to appear in court for short hearings on the video link, saving the expense and disruption of a day trip to the court for a 5 minute hearing. Over the past 12 months when the work of the Court has been disrupted by COVID-19 the Court has made even more extensive use of video and audio conferences. In a way the pandemic showed that remote appearances by counsel can be normalised. Remote appearances allowed the Court to continue its work in a safe and socially distant manner. At the same time, the Court is alive to concerns that overuse of video conferencing runs the risk of dehumanising court proceedings, especially for sentencing hearings. One significant area of the Court’s work which has been the beneficiary of technological advances over the past 30 years or so has been the way in which the Court deals with children and other vulnerable witnesses. Amendments to the Evidence Act in 1992 allowed the Court to pre-record the evidence of a vulnerable witness at a pre-trial hearing. The witness could be in a remote room. The recording could then be used as the evidence of the witness at the trial. This has been a routine procedure in the District Court since then. The Court is constantly fine tuning the arrangements with remote rooms, including to ensure that the background colour provides an optimal image of people with differing skin tones (ironically, the best colour is ‘justice blue’). The courtroom audio visual system in its current form allows for an exhibit such as a document or video displayed in the courtroom to be displayed in the remote room, with the jury seeing a split screen with the witness on one half and the exhibit on the other. Even when a vulnerable witness gives evidence at the trial, it is routine for the witness to give evidence from a remote room, and for that evidence to recorded so that if the trial is aborted or a new trial ordered on appeal, the witness does not have to give Another significant amendment to the Evidence Act was in 2004 to allow a recorded interview of a child complainant in a sexual assault case to stand as his or her evidence in chief at the trial of the action. Again, the use of this procedure is routine.

A stark illustration was a circuit trial we did in Kununurra late last year. No prosecution witness gave evidence in person in the Court. Their evidence was received by a combination of recorded police interviews, pre-recordings, audio links and video links. It was only when the accused elected to give evidence did we have the witness in person. The idea of running a trial without physical witnesses would have seemed preposterous in the early days of the District Court, but nowadays it’s seemingly business as usual.

Whilst the District Court still operates circuits, things have changed considerably since the days of Supreme Court judges travelling up the coast on a steamship. Nowadays it is commonplace to dial into Halls Creek, Carnarvon or any number of regional courts to hear a simple procedural matter, saving time and money, but more importantly administering justice as efficiently and fairly as possible. It will no doubt be possible in the near future for a judge to sit in a circuit court as a holograph. Therein lies a tension. What is possible from a technological perspective is not always an optimal way to administer justice. We can readily imagine residents of a large regional centre feeling like second class citizens when a District Court judge chooses not to make the effort to be physically present in their community to administer justice. Where is their access to justice? As a Metallica album once said “…. And Justice for All!” Justice must be accessible to all.

That includes both facilitating removing barriers to access and providing additional means for all participants to meaningfully engage in the court process. For example, the new District Court Building when commissioned in 2008 had hearing loops built in, allowing people with hearing devices to connect directly to the courtroom audio system. The hearing loops were upgraded in 2019 when the technology in the DCB was refreshed. So an accused or juror with a hearing impairment can be seamlessly accommodated by the Court. Another more recent innovation is that there is now technology available for interpreters to sit in a dedicated room outside the

courtroom, watch a witness on a video monitor and then provide the accused (or multiple accused) with interpretation through headphones. This is a massive improvement from having an interpreter in the dock, sitting next to the accused, and whispering what is said, in effect, into the accused’s ear.

One of the most significant innovations over the last 15 years is the move to replace paper files with electronic files. The first writ to be electronically lodged was lodged in February 2005. Over the next 13 years additional documents were added to the list of documents able to be eLodged. By the beginning of 2018 all District Court civil documents could be eLodged. In March 2018 the Court mandated the use of the eLodgment system for all lawyers, though in distinction to the Supreme Court, not litigants in person. The decision was taken that requiring litigants in person to use the eLodgment system may impose a barrier to at least some potential District Court litigants accessing justice through the Court. All new files were eFiles, meaning that paper records were no longer kept by the Court. Judges and Registrars were given the ability to sign orders electronically, which are then automatically sent to the parties. The parties can access the eFile for their matter online. Registered users can access some basic information about all cases filed in the Court. In the future, we expect that members of the public will be able to access online the documents and information which they are entitled to access over the counter. It is possible for the District Court to run an eTrial in which all documents are tendered and managed electronically, but this is yet to occur. The next significant project for the Court is to move to eLodgment and eFiles in the criminal jurisdiction, which is scheduled to occur in the next few years. Another significant project in the near future will be to manage the capture and digitization of evidence in criminal cases from the point in time it is captured or generated by police though to when it is disclosed to when it is presented to a jury in a trial, perhaps years later. We imagine a world in which electronic versions of witness statements have exhibits hyperlinked in. At the same time, we imagine a world in which primary data is only input once, and is moved seamlessly through the investigation, disclosure and trial processes. So where to from here? Anyone who has worked for the District Court for any amount of time knows that judges, their staff and registry staff engage with technology of some sort on a daily basis. An ongoing challenge as we rely more and more on technology is to ensure that it works first time, every time. One of the most catastrophic failures we can have as a Court is to lose the recording of a child’s evidence, so multiple layers of backup are in place to prevent this occurring. More generally, innovations like technology staff having the ability to remotely access and fix equipment in a court room assist in minimising the downtime when technology fails. Considerable work is undertaken each year to ensure that all court rooms in which the District Court sits are routinely upgraded as new and more robust technology becomes available. One such project is to enhance the court room audio visual system so that the court can use MS Teams to conduct hearings which are recorded in the Court’s monitoring and transcription system. As to the next 50 years, perhaps the only thing we can say with certainty is that changes in technology will inevitably impact the work of the District Court in ways we can’t yet imagine. We can image a trial in the not too distant future in which a vulnerable complaint will appear in the witness box as a three dimensional holograph. The evidence in chief of other witnesses will be interviews recorded by police officers on their body cameras at the scene of the crime. All the evidence will be presented digitally, and viewed by jurors on individual tablets provided by the Court. The movements of the complainant and the accused on the evening in question will be the subject of a movie which links together high quality CCTV footage from street and venue security cameras, almost like an AFL disciplinary hearing. The jury will be able to undertake a digital walk though of the crime scene, exploring it from the jury box using virtual reality headsets. Once deliberating, the jury will be able to replay a video of the evidence, closing addresses and the judge’s direction in the jury room. As much of the trial as possible will be live streamed so that members of the public can watch it at home. And the judge on sentencing will be assisted by an artificial intelligence program which summarises comparable cases. Whilst we don’t foresee a District Court Twitter or TikTok account anytime soon, we are living in an evolving time in the Court’s history of adopting technology. We are sure this adoption will continue into the future for the benefit of the people of this great State of Western Australia wherever they are situated.