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