The concept of digital briefs of evidence and virtual court proceedings has been widely discussed by government agencies, law enforcement and litigation firms for years.
In December 2008, Justice Moynihan conducted a review of the civil and criminal justice system. In the discussion paper, Reform of the Committal Proceedings Process, Moynihan explained how transitioning from a paper-based to an electronic system for investigation management should significantly reduce the investigative workload.
The impact of COVID-19 on this transition
Although widely discussed, the onset of COVID-19 saw a scramble to accelerate this process and highlighted the need of embracing digital briefs to run virtual proceedings, not just in Australia but around the globe. Courts are notorious for administrative and paper burdens and there has been a strong push before the pandemic to use technology to improve efficiency and effectiveness in the administration of justice.
Craig Doran, Chief Executive Officer at Comtrac, outlined how courts were initially caught flat-footed in response to COVID-19:
“Urgent reforms of judicial processes had to be implemented – which typically occurred at a glacial pace. A consequence of the changes brought about by COVID-19 was the adjournment of civil cases and criminal trials,” Craig said.
“The general opinion of the public, whether an informed opinion or not, was that getting matters finalised in court is akin to jumping on a dinosaur tail trying to get it to move,” he added.
2019, a directive was issued for the Magistrates Court in Victoria on ‘Electronic briefs in Indictable Matters’
“With criminal cases in the Magistrates’ Court of Victoria (the Court) becoming increasingly complex and requiring progressively more documentation, it is convenient and environmentally responsible for the Court to support the transition towards electronic handup briefs where it is suitable to do so. The purpose of this Practice Direction is to regulate the use of electronic briefs in indictable matters and set out requirements for the composition of the briefs.”
Her Honour Justice Fullerton – R v Macdonald (No 11) [2020] NSWSC.
“The Court also expressed concerns as to how it was envisaged that witnesses would give evidence via the AVL and be cross-examined when the Court Book exceeds 7,500 pages and with an additional 79 documents marked for identification. The parties agreed to continue to work with the Court to endeavour to resolve the numerous technological challenges involved in the trial continuing at this time”
Despite the courts undergoing a breakneck transition to operate virtually, the subsequent impact on the backlog in court listings was unavoidable. The delay in hearings can be a detriment to the memories of witnesses and over time, can impair the public’s confidence in the judicial system.
Due to the “back-to-back” nature of caseloads, investigators will often complete their investigations at one point to take the relevant enforcement action, whether that’s an arrest, summons or administrative sanction. In doing so, they will not prepare the brief of evidence until they are aware of a pending court date.
Craig explained, “This almost always results in a last-minute rush to construct the brief, which has always been a common characteristic of inadequate or incomplete briefs.”
The role of digital briefs of evidence and virtual courts in streamlining the criminal justice process
Automatically creating a digital brief of evidence as the investigation progresses, rather than months after the investigation concludes, addresses the quality and suitability of briefs of evidence in virtual and online proceedings.
Most importantly, digital briefs of evidence are crucial in supporting the transition to virtual proceedings thereby reducing adjournment timeframes and streaming the criminal and civil justice process to gain ground and future-proof proceedings.
The wheels of justice kept turning as our courts faced unprecedented disruption from COVID-19. The considerable impetus to change by Australian courts will continue in line with COVID-19 compliance directions.
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