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Guidelines for remote participation by witnesses in criminal hearings

Hon Justice S E Thomas
Chief High Court Judge – Te Kaiwhakawā Matua
27 July 2020

Overview

1.  These guidelines outline practical considerations for judges and participants when considering and determining whether witnesses can, and if so, should, give evidence remotely in criminal trials. These guidelines apply to all witnesses in criminal trials, though the issues arising from remote participation are more likely to arise in the case of civilian witnesses.

2.  These guidelines are not a directive or a court protocol; they have been prepared to assist judges and participants who are considering remote participation by witnesses during the time of the COVID-19 pandemic. The participation of any witness by remote means must be considered and determined on a case-by-case basis. The right of the defendant to a fair trial will be a paramount consideration in all cases.

3.  As a general proposition, where it is reasonably practicable for a civilian witness to give evidence in person in the courtroom (or from another room within a courthouse), they should do so.

4.  The different Alert Levels impose varying degrees of restrictions on the community. These restrictions do not govern what happens in courthouses, but courts have adopted protocols which reflect the restrictions by, among other things, limiting numbers of people in courtrooms and requiring physical distancing. The protocols allow attendance at court by all participants but encourage remote participation where appropriate. The current Alert Level and conditions of it will be a relevant consideration when applying these guidelines.

Definitions

5.  “AVL” refers to traditional audio-visual links (such as the closed system that has been operated by the Ministry of Justice for several years) and other internet-based AVL technologies (e.g. Microsoft Office Teams, Zoom, Jabber).

6.  “Civilian witnesses” are witnesses other than Police employees, employees of other public service agencies who are giving evidence in accordance with their official duties, Environmental Science and Research employees and other expert witnesses.

Preliminary comments

7.  When determining whether to allow any witness in a criminal trial to give evidence remotely, the Judge must have regard to the effective maintenance of the right of the defendant to a fair trial and on his or her rights associated with the hearing (s 6 of the Courts (Remote Participation) Act 2010 (CRPA)).

8.  In addition, the Judge should have regard to the practical matters that might make it impossible or inappropriate for the witness to give evidence remotely. These matters might include whether a witness has adequate internet access or appropriate software, or whether the Judge or counsel can adequately control non-cooperative witnesses. These matters are discussed below under Practical issues and matters for consideration.

9.  Defence counsel and the prosecutor should consider and endeavour to agree if it is appropriate for any witness to participate remotely and advise the Court of any such proposals. An application should be made as soon as practicable before the hearing date. A pre-trial conference may be required to consider any such proposals and is likely to be required when a defendant is self-represented. Before deciding any application for a witness to give evidence remotely, the Judge must give each party the opportunity to be heard (Evidence Act 2006, s 104).

Relevant provisions

10.  There are a number of statutory provisions contained in the Evidence Act and the Courts (Remote Participation) Act relevant to whether and how a witness may give evidence remotely.

11.  The provisions are listed in Appendix 1 of these guidelines.

Who needs to be present?

12.  The defendant has the right to be in the courtroom for any hearing at which guilt, or innocence is determined. These guidelines assume that defendants will exercise this right.

13.  These guidelines also assume that the judge, the prosecutor and defence counsel will be in the courtroom. It is directed to remote appearance by some witnesses.

Practical issues and matters for consideration

14.  Some matters will be dispositive as to whether witnesses may give evidence remotely, such as whether a witness has adequate internet access or appropriate software. Other matters will involve more discretion, such as the complexity of the proceeding, the number of witnesses involved, and the nature of the evidence (including exhibits). These matters include:

  • Whether Judges or counsel can adequately control witnesses without the implicit compulsion of the courtroom. In particular, it will be difficult to control where:
    • witnesses leave the AVL link, or are non-cooperative in any other way
    • other people are in the room with the witness while they give evidence (or if there are multiple witnesses at the same venue or address)
    • witnesses mis-use documentary or other materials provided to them for their evidence.
  • Such concerns may be acute in cases concerning family and sexual violence, where witnesses may be subject to pressure from other people in the room or house, and there is little judges can do remotely to protect witnesses.
  • Particular care is needed in the case of a child witness, as the need for a support person or caregiver to be present or in the vicinity while the child gives evidence raises a risk of the child not speaking freely.
  • Audio-only evidence is unsuitable for any witness whose credibility is in issue.

15.  A full list and a discussion of these matters is set out in Appendix 2 of these guidelines.

Test the AVL connection

16.  Following any decision to proceed with certain witnesses using AVL or other technologies, and before the hearing, the Registry will need to thoroughly test the AVL connection(s). Testing is to be done with the witness appearing remotely prior to the hearing. The Registry will need to be available to assist each witness to rectify any issues arising on the day of the hearing.

Open to the media

17.  Trials conducted with witnesses giving evidence by AVL will of course remain open to the media who can attend court in the usual way. So long as physical distancing in courthouses is recommended, accredited media may participate by remote means provided they have undertaken to remain muted and not to record sound or capture images or video without the express permission of the presiding judge.

Resources and international comparators

18.  Comparator jurisdictions (Australia, Canada, and the United Kingdom) are generally adopting a more discretionary approach to assessing which cases can be heard using remote appearance technology. Their guidelines concern the practicalities of appearing using the technology, once the decision to proceed using the technology has been made. These are dictated largely, it seems, by the particular platform being used in each jurisdiction.

19.  The following guidelines and guidance on remote hearings created in comparator jurisdictions may be useful:

 

Appendix 1 - Relevant statutory provisions

Evidence Act 2006
Section 9(1)(b) Parties may consent to evidence being given in "any form or way".
Section 77 Witness to give evidence on oath or affirmation.
Section 102A Outlines the relationship between the CRPA and the Evidence Act. Nothing in the CRPA affects or limits the ability of a party to apply under s 103(1) for evidence to be given in an alternative way, or of the ability of a Judge to make directions under that subsection.
Section 103 A Judge may, either on the application of a party or on the Judge's own initiative, give a direction about alternative ways of giving evidence. It will be necessary in any case where AVL evidence is to be used that an appropriate direction is made.
Section 103(3) Sets out optional matters to consider when making a direction under s 103.
Section 103(4) Sets out mandatory considerations when making such a direction, in particular: the need to ensure fairness, and in a criminal trial, that there is a fair trial and there is regard to views of the witness.
Section 104 Where an application to give evidence in an alternative way is made, the Judge must give all parties an opportunity to be heard on the matter in a chambers hearing.
Section 105 Provide for witnesses to give evidence remotely, provided that "any appropriate practical and technical means may be used to enable the Judge, the jury (if any), and any lawyers to see and hear the witness giving evidence". See also s 107 in respect of child witnesses
Sections 106A, 107 and 116 These sections contain specific provisions for a family violence complainant, child witness and anonymous witness respectively.

 

Courts (Remote Participation) Act 2020 (the "CRPA")
Sections 5 and 6 General criteria the judicial officer or Registrar must consider when deciding whether to allow the use of AVL.
Section 9 AVL must only be used in substantive criminal matters if a judicial officer allows it in accordance with ss 5 and 6, and taking into account whether the parties have consented to its use.
Section 10 Judicial officer or Registrar may vary or revoke their determination under s 9.
Section 14 Witness who appears by AVL is considered present at the place of the hearing regardless of their physical location.
Section 15 Documents and other exhibits can be shown to a witness by any manner the judicial officer or Registrar thinks fit, including via electronic transmission or AVL.
Section 17 AVL does not affect the exercise of a judicial officer's powers.

 

Appendix 2 – Practical issues and matters for consideration

Issue
Matters for consideration
Comments

Threshold jurisdictional issue

1.  Is the use of AVL in respect of a particular witness in the proceeding appropriate, having regard to the potential impact of the use of the technology on the effective maintenance of the right of the defendant to a fair trial, and on his or her rights associated with the hearing, and, in particular, those matters listed in s 6 of the Courts (Remote Participation) Act 2010?

This is the first and mandatory consideration. Where it is reasonably practicable for a civilian witness to give evidence in court in the usual way, they should do so.

 

Does the witness in fact need to give evidence?

2.  Have the parties properly addressed the possibility of the witness's statement being admitted, or dealt with, as agreed fact pursuant to s 9 of the Evidence Act 2006, removing the need for the witness to appear at all.

•  This is ultimately a decision for the parties. Judges should encourage them to consider using s 9.

•  Counsel should be encouraged to consult before the trial if clarification or confirmation of an aspect of a witness’s evidence would result in the witness not being required to be called. The result of the pretrial enquiry can be included in the agreed s 9 statement.

Non-cooperative or hostile witnesses

3.  Is there any reason to suspect that the absence of the implicit compulsion associated with being seated in the body of the court will mean the witness?

a.  will not appear when required?

b.  will not be able to be controlled?

c.  cannot be relied on to give truthful testimony?

4.  In particular, is there reason to suspect that:

•  the witness will be giving evidence from a remote location where they may be subject to the influence or control of others in a manner the Court will be unable to detect or prevent?

•  the witness may be, or may become during examination, hostile or otherwise non-co-operative?

•  the witness may, for any other reason, disconnect from the AVL or otherwise refuse to further participate in the proceeding?

 •  The implicit threat of compulsion associated with witnesses being seated in the body of the Court is a major aspect of the trial dynamic.

•  Given difficulties around controlling witnesses over AVL, if more limited control over the witness is likely to be disruptive, that witness will likely not be able to give evidence remotely.

•  Concerns around potential hostility may be particularly acute in matters of family and sexual violence, where there is a risk of the complainant, family or friends exercising control at the remote location, or of the remote location itself being traumatising in some way.

•  If there is a concern that a witness may be hostile, remote participation is not appropriate. 

Technical feasibility: threshold questions governing the ability to give evidence remotely

5.  Does the witness have a computer/other competent device that has AVL capability?

6.  Does the witness have an adequate internet connection?

7.  Does the witness have the appropriate software downloaded on their device?

8.  Does the Court have the capacity for the witness to give evidence remotely, given the number of connections in use at that time?

•  The expectation is that counsel will have considered the witness's technical capabilities in advance.

•  Depending on a witness's technical capabilities, the Registry will need to liaise with the witness on the technical requirements.

•  Registry staff will establish the technical suitability of the use of VMR. Registry will also send witnesses a guide to giving evidence by AVL. This guide is on the Ministry of Justice website.

Can the witness give audio-only evidence?

9.  Is an audio-only connection (for example, telephone) available to the witness where an audio-visual connection (internet video conferencing) is unavailable?

10.  Do all parties agree to the evidence being given in this way?

11.  Is credibility likely to be in issue to any degree for this witness?

12.  Is there any other reason why the witness may need to be seen in person by the judge, lawyers or parties, to ensure the evidence can be fully understood and safely relied upon?

 •  Section 105(1)(b) of the Evidence Act 2006 requires that the judge, jury (if any) and lawyers can "see and hear the witness giving evidence. Defendants are also entitled to see and hear the witness giving evidence except if the Judge directs otherwise (s 105(1)(c)).

•  Audio-only evidence may be admitted under s 9(1)(b) of the Act where all parties consent.

•  If so, evidence may be a candidate for admission by consent under s 9, with no appearance required (see “Does the witness in fact need to give evidence?”).

 Swearing in witnesses

13.  Is a bible or other required religious text available at the remote location? This will only need to be addressed where the witness:

•  wishes only to swear an oath and will not agree to instead make an affirmation; and

•  will not declare that they would consider themselves bound by an oath sworn while not holding a bible or other text.

 •  Existing AVL - Court to Custody guidelines for the Registry provide the court taker will administer any oath or affirmation from the Court over the video link. No further or special procedures are required.

•  See the position in New South Wales – it is the responsibility of parties to ensure the relevant religious text is available.

•  There is some flexibility. Section 3(c) of the Oaths and Declarations Act 1957 provides that a person may take an oath in any manner they declare to be binding on them. The unavailability of a religious text at the remote location would only impede evidence from being given remotely if the witness maintained they would not be bound if they were not holding a religious text and if they were unwilling to make an affirmation.

Managing witnesses

14.  Is the Court satisfied that the witness will be giving evidence from a location in which:

•  only the witness and any authorised support person physically with the witness are present?

•  only the witness, any support person, and those present in the Court and on the AVL are able to see and hear the witness while the witness is giving evidence?

•  the Judge can, because of the positioning of the camera, be satisfied as to the two matters above throughout the whole of the witness's evidence?

15.  The Judge should confirm at the outset of the witness's evidence that they are alone in a room, with the door closed.

•  Witnesses should be isolated from the presence of others. See the guide to witnesses giving evidence by remote. This guide is on the Ministry of Justice website.

•  A checklist adapted from the present Evidence Regulations 2007 provisions governing Police video records may be useful reference.

Exhibits/documents

16.  Is there any physical exhibit evidence?

17.  Has the witness been sent all relevant documentation (such as statements that will be relied on, or photography booklets they will be referred to)? OR

18.  If the documents have not been sent to the witness, or cannot be sent to the witness for reasons of sensitivity or practicality, are the documents/other items that will be shown to/required by that witness sufficiently few in number that they could reasonably be shown to the witness via the AVL link? Will any difficulty be occasioned by the need to draw some feature of an exhibit to the attention of the witness or have the witness identify or mark part of an exhibit?

 •  If exhibits are shown to the witness via AVL, the defendant(s) and counsel should be able to see the same material at the same time – this will also allow the witness’s reactions to exhibits to be observed. This may require particular technical requirements (for example, if electronic materials/documents are to be used).

•  If the witness’s evidence is likely to be exhibit-intensive (in terms of significant interaction with physical exhibits), the witness is unlikely to be suitable for AVL.

Need for chambers discussion

19.  Is there likely to be any need for lengthy or frequent chambers discussions during the witness's evidence, such that:

•  difficulties may be encountered with reliably reconnecting the witness?

•  the witness may become frustrated and at risk of non-compliance?

•  the hearing of the matter may otherwise be unreasonably delayed?

 •  A witness may be disconnected from the AVL facility for the duration of any chambers discussion. Some platforms also enable muting of particular links.

•  If the evidence is likely to be interrupted to this degree, these disconnections may prove highly frustrating to the witness, and risk non-compliance or difficulties reconnecting the witness. In such cases, the use of AVL may be inappropriate.

Communication assistance (including interpreters)

20.  Does the communication assistance require the assistant to be in the same location as the witness?

•  For oral, sequential translation, the interpreter and witness can be in separate locations, although the practicalities will require close consideration.

•  If the defendant requires an interpreter, the interpreter will need to be in court with the defendant.

•  For defendants using an interpreter via AVL, current New Zealand practice requires the interpreter to be in court (as per the Court to Custody AVL guidelines). Other jurisdictions have faced a shortage of communication assistants as a result of COVID-19. Depending on the requirements of the Alert Level in force at the time, any person required to travel should be issued with an essential services letter.

•  If a communication assistant/interpreter is required over AVL, the practice used in the UK Court of Protection could be adopted:

95.  A court-appointed interpreter for the purposes of translation for someone giving evidence is less of a complication as the interpreter will participate in the video and audio hearing and speak at normal volume which will be recorded. Likewise for the witnesses evidence given in the participant’s first language.

96.  When a party is not giving evidence but has an interpreter to assist with their understanding of the rest of the hearing they should have the sound from their location on mute; thus it is possible for the interpreter to be a participant in the remote hearing and at the same time on a separate audio channel (either through the software or by telephone) translating the evidence/submissions/judgment to the litigant. Both the litigant and the interpreter should be on mute to the main hearing to prevent any interruption.

•  If a witness requires an interpreter, specific consideration should be given to whether the technological arrangements and capabilities of the witness will be sufficient. If communication difficulties are likely, this is a factor which points in favour of an “in-person” appearance.

Support persons

21.  Depending on the requirements of the Alert Level in force at the time, are the support person and the witness isolating in the same COVID-19 “bubble”? If so, it may be feasible to have both appear from the same remote location.

22.  If not, to be of any real support, both will need to attend court in person.

 •  Allowing AVL for the support person and the witness in the same location injects a degree of loss of control and a risk of the support person coaching the witness or enabling communications (such as hand gestures) that the Judge has not permitted.

•  Judges or the Registrar could ensure the video captures the hands of both people to prevent prohibited communication.

Admissibility issues

23.  Is any evidence hearsay? If so, is it admissible under the exceptions in either ss 18 or 19 of the Evidence Act 2006?

•  Counsel should consider the admissibility of hearsay evidence (which may remove the need for some witnesses to attend).