The Gazette 1992

GAZETTE

JANUARY/FEBRUARY 1992

Oral evidence The common law system is based upon a tradition of oral evidence, and it is not to be supposed that the introduction of computers will force a change in that tradition. The use of computers by the general public may make it unlikely that oral evidence will continue its domin- ance, but the impact and effect of the change in the way the public conducts its affairs is beyond the scope of this paper. Computers are a f f ec t i ng the manner in which oral evidence is recorded. A transcript is more efficient if aided by a computer, and there are systems available which recognise speech sufficiently to allow a faster transcription service. Even if the computer does not recognise speech, it can be of sig- nificant assistance to the recording of evidence, and it produces the transcript in electronic form as well as in a printed form. In the author's current trial, the transcript service provides a disk containing the day's transcript within 90 minutes of the end of the day. It is placed on the author's computer and fully indexed within seven minutes of receipt. It pro- vides an excellent means of re- trieving evidence relating to matters where sufficiently unique expressions are employed to identify the matter. It is expected that within the next ten years (indeed, within the next two years) the service will be directly connected to the court and computers in the court will produce the transcript of what the witness said within twenty minutes or less of the spoken word. The author has found that the avail- ability of transcript on computer has facilitated the conduct of ex- amination, cross-examination and re-examination of witnesses. It allows the retrieval of the exact passage of evidence far more quickly than is possible with printed transcript, and therefore greater exactitude in putting matters of evidence.

The computer and associated equipment such as telephone-video are also changing the manner of taking evidence, and hearing sub- missions. With greater movement in today's population, and commer- cial matters taking place that often span vast areas within a country, if not the world, it is becoming commonplace for evidence to be required from distant parts. At present this has required arrange- ments to bring witnesses to the court, with disruption and incon- venience to their lives, and some- times to the court's schedule. This has been mitigated to some extent by allowing evidence to be taken on commission, thus producing a transcript for use in court. A far better course has been pioneered in New South Wales, where a witness in the United States was examined by the court in Sydney employing a telephone video service. The oath was administered, and the witness examined and cross-examined in the course of the trial in Sydney without the witness departing New York. The judge was able to not only hear what the witness said, but also observe his demeanour. This is a most attractive develop- ment, not only for witnesses who are on the other side of the world, but also distant within a country. There seems little reason why a witness should be required to disrupt his life for 2-3 days to travel to a city to give evidence where his evidence could be taken by this means without him leaving his home town. Within the next ten years it is likely this will become commonplace. The High Court, which sits in Canberra, has commenced hearing submissions for leave to appeal from applicants in places distant from Canberra by employing such a service. Few difficulties appear to have been encountered, and it has saved litigants the very substantial costs involved in sending their counsel to Canberra overnight. Documen t a ry evidence Evidence based on documents has increased markedly in the past fifty years. This is a product of tech-

nology, being the doubtful fruits of the photocopying machines, the word processors and now the fac- simile machine. It is not uncommon to find commercial cases in both the criminal and civil jurisdictions involving hundreds if not thousands of documents. There is a problem in coping w i th this mass of evidence. Two particular problems may be first examined. One is the task of giving discovery. This is necessary in all jurisdictions, be they criminal or civil, and much the same technique may be applied which- ever it is. The second is to provide access to the documents in a meaningful manner. Discovery requires a systematic listing of documents, determination of relevance and discoverability, and communication to the other party or parties. When being done it is a time for also recording the source of the document, nature of it, a summary of its purport, and dates to which it relates. These tasks are well facilitated by com- puter systems. In Australia there have been developed specific programs for lawyers which allow this to be done efficiently, and for the discoverable results to be sent electronically to the opposing lawyers who also have the same programs. The significant efficien- cies in all having the same program has led to one program being the preferred tool of major firms of solicitors. In the criminal jurisdiction the same approach is being taken. In the au t ho r 's current trial, wh i ch involves hundreds of documents, the prosecution gave to the defence a disk containing the data base of all document material to the case, as well as a printed list of the documents. The court was given the same, and invited to give to each document, on tender, the same description. This saved a great deal of time at the trial, and provided a working index of docu- ments capable of being catalogued instantly by exhibit number, or by date, or by any indexing word that

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