With the modern nature of the law it’s common for lawyers or their witnesses/clients to be unable to actually appear in person. Usually the courts or tribunals are pretty accomodating about the use of AV equipment, but not always.

Whether you’re called out of town, sitting on a beach or appearing in another state there are numerous reasons that you are unable to appear in person. In the instances of criminal trials it’s often more important that the jury is able to examine the witness in person. Each matter and each particular witness and their evidence will determine whether the court will allow people to present their evidence or make their appearance remotely.

Power of Court to Allow Remote Evidence 

The general power of the court to allow for remote evidence is a purely discretionary one. However there are general principles that have been set out which guide the exercise of this discretion. These could broadly be characterised as:

• the Court will allow evidence to be given remotely when the facilities are available;
• when it is more convenient; and
• when there is no prejudice or that it would not be unfair.

The core power of the court stems from its inherent jurisdiction to determine the manner and means under which it considers appropriate to receive evidence. Inherent jurisdiction is of course subject to legislation. The Evidence (Miscellaneous Provisions) Act 1991 (ACT) sets out the same three factors as above at section 20(2).

The Evidence (Miscellaneous Provisions) Act was essentially designed to plug procedural holes in the Evidence Act, especially those that may evolve over time with the advancement of technology without needing to mess with the loftier goals of the Evidence Act. This includes remote audio visual provision of evidence, the ability to swear an oath without a bible, and pre-recorded evidence.

Further to the Act, the Court Procedures Rules 2006 (ACT) provides for these allowances with rules 6700-6704, including rule 6703 which governs when evidence can be given by telephone and states that:

(1)     The court may receive evidence or submissions by telephone, video link or another form of communication in a proceeding.

Further, at subs(2) the rules allow for the court to impose any conditions on this that the court considers appropriate.

Considerations

Leading judgment in the ACT contains considerations that fell from Higgins CJ in Brodie v Streeter [2003] ACTSC 88:

9. The appellant, opposing the application, pointed out that the court itself had facilities to aid the hearing impaired. As to the second ground, …”more convenient” related to the adducing of the evidence not the convenience of the witness. For example, it may be “more convenient” to give evidence remotely by video link if the witness could not, without undue difficulty and expense, be brought to the courtroom. A prisoner at a remand centre, or a medical witness in a different city were examples given.

10. That interpretation is consistent with the objectives stated by the then Attorney-General, Mr Humphries, on 18 February 1999, introducing a Bill (inter alia) to enact s 30 (supra).

This decision has been re-affirmed several times including recently in R v BNS [2016] ACTSC 51 where the court held that:

12. The Respondent submitted that the witness’s evidence could not be given “more conveniently” from a remote location by video link. His Honour rejected the argument, saying at 179: [14]-[17]:

1. 1. Her Worship adopted a wide interpretation of ‘more convenient’. Clearly, the witness in this case was not more conveniently located in a remote witness room as opposed to being located in the courtroom. She could equally conveniently access either.
   2. The dictionary definition, adopted by her Worship, is in terms of suitability – being ‘not troublesome’ to a person. It seems to me that ‘more convenient’ is an expression used in a wide sense to include the convenience of the court, the parties and the witness in question.
   3. In the present case, it was, in my view, open to her Worship, on the evidence, to find that the witness’ stated aversion to the appellant, whether reasonably based or not, made it ‘more convenient’ for her to give the evidence remotely.
   4. It was also more convenient for the court to have the evidence given free from the stated inhibitions troubling the witness. Indeed, to an extent, it would favour the appellant that, if the witness’ evidence was nevertheless unsatisfactory, that could not be attributed to the inhibiting presence of the appellant.

The right to appear remotely will more likely be granted when the nature of the evidence to be given does not require the witness to analysed on their personality. Most cases that reject the provision of evidence remotely are related to criminal trials where it may be unfair for the jury to not have the opportunity to examine the demeanour of the person. In Brodie this was rejected because it was at the interlocutory stage but I note that this consideration led to this application of the test being rejected in several cases including in In the matter of an application by the Director of Public Prosecutions [2010] ACTSC 138:

4. On the other hand, as Mr Kukulies-Smith has pointed out, he is one of the major Crown witnesses, indeed the primary witness in relation to the case against HK. His demeanour will be central to the acceptance of his evidence by the jury and there is every likelihood that he will be asked to demonstrate particular features of the activities of the night in question, during the course of his evidence. This can create significant difficulties over the audio/visual link, and certainly lacks immediacy for the jury.

Conclusion

To reiterate the original 3 points the evidence must be able to be given by the facilities available, be convenient to the giving of the evidence and that there will be no prejudice to the party not relying on the evidence. If these conditions can be satisfied there should be no reason, if given that the excuse is genuine, that a lawyer or witness should not be able to appear remotely.