AIJA Technology for Justice 2000

9 October 2000

By the Hon David K Malcolm AC

Chief Justice of Western Australia

Hotel Sofitel

Melbourne, Victoria

It is trite to say that advances in information technology have provided the biggest single challenge and potentially the most important benefits for the efficient management and conduct of litigation in the courts. Those of us involved in the administration and management of the business of the Courts cannot afford to ignore the potential benefits of information technology. We must harness them fully to assist the efficient and timely administration of justice. While the introduction of new information technology systems requires us to re-examine our existing processes and procedures, it also gives us the opportunity ensure that we adopt the most efficient and effective systems. This is no small challenge. If, however the judiciary, court administrators and the executive government work closely together, they can successfully meet this challenge. I personally am a very strong supporter of and fully embrace the new technology as a tool to assist me with my judicial and administrative responsibilities as a Chief Justice.

In the year 2000 the sight of judges, associates, counsel and solicitors with laptops and other computers in court is no longer a novelty, but is a common sight in Western Australian superior courts. Analysis of statistical reports shows that the nature of the work coming before the courts has changed over recent years. A significant number of cases are longer and more complex than was the case in the past. The consequence of this is that the volume of material required to be dealt with by the registry and the judiciary has significantly increased. Registries are encountering serious difficulties in managing and storing the records involved.

When I graduated from Law School in 1959 the production of transcripts of evidence prepared from tape recordings at trials had recently commenced in Western Australia. The basic system remains the same, except that the transcripts are now available in electronic form. The tape recordings, however, have been preserved.

It was almost thirty five years later in 1993-1994 that we achieved the availability of transcript in electronic form. It does not appear in the judgment in Connell v The Queen (No 6) (1992) WAR 133, but this was the first appeal heard in Western Australia in which there was no hard copy of the transcript used. The trial had lasted for several months. The evidence comprised some 12,000 pages of transcript and there were literally hundreds of exhibits. Photocopying the transcript into appeal books would have required some 60 volumes per Judge or barrister and solicitor as well as for the court use a minimum of 10 sets or 600 volumes plus exhibits. The savings in making 120,000 photocopies of transcript is obvious. As a result of a direction that the electronic transcript not be copied but made available in electronic form for the appeal, the time for the hearing was reduced from one month to six days. As a result there were huge savings in photocopying as well as time. In that case there were 54 grounds of appeal raising more than 100 issues. These were assigned a number from 001 to 104 and each number was followed by a keyword or words. At the end of each day and at the end of the hearing it was possible to print out all the bookmarks and issues on an issue by issue basis. This remains a fundamental tool today. Although the software for bookmarking and annotating the trial and appeal transcript was relatively primitive, it was very effective. The hearing finished on 18 August 1994 and the reserved judgment of 369pp was delivered within four months on 22 December 1994.

In October 1995 the Council of Chief Justices of Australia and New Zealand established a working party to examine the development of common rules for the production of appeal material in electronic format. The rationale of this decision was that if:

The working party was established in January 1996 and prepared terms of reference and an action plan for the project. After a series of interim reports the working party produced a final report and recommendations in May 1998. The report and recommendations were adopted by the Council in the same month. The working party continues to provide regular reports to the Council on recent developments and monitors the progress in each State. The recommendations have been implemented in Western Australia.

Following further experimentation in the Supreme Court of Western Australia with the use of electronic transcript and the development of document imaging and conversion of documentary exhibits into electronic form during 1996, in early 1997 I appointed a working group to conduct a pilot project with the object of creating a fully electronic appeal book. This became known as "the e-appeal project'".

Under the pilot project:

On 3 June 1998 I presided over the first entirely electronic appeal heard in Western Australia. The appeal was heard over a period of three days. The electronic appeal book included the trial transcript of some 1,300 pages, 3,000 pages of exhibits and 350 court and other documents including the judgment of 122 pages. The database was developed utilising Lotus Notes and Lotus Domino technologies. Lotus Notes provided a platform for the development of a system which is simple to use.

Monitors were set up in the courtroom so that each counsel had easy access. What appeared on the monitors was controlled by one of the Judges' Associates. The time delay between a request being made by counsel and the relevant document appearing on the screen was minimal. The period was not more than 2 or 3 seconds. This was considerably quicker than having all present picking up and putting down different volumes of a hard copy appeal book. During the hearing counsel did not refer to an appeal book page number. Rather, counsel nominated the document by name and then referred to the page number of that document saying, for example, " On p3 of the notice of appeal", or "At p2016 of the transcript".

If and to the extent that they wished counsel and solicitors were able to operate from their own notebooks, which contained a copy of the entire appeal database. Counsel for one of the parties and the instructing solicitors for all parties did so. Counsel for two of the parties preferred to operate from hard copy documents, although still referring to the documents by name and page number so they could be brought up on the screens for all other participants.

On two or three occasions during the hearing counsel wished to refer to a document that had not been included in the appeal book database. A facility was available to have the image of the document projected on a screen that could be seen by all participants. However, in each of those instances the document was of one page only and it was handed up in hard copy form.

Each member of the Court had a monitor on the Bench. In addition, each Judge had a notebook with his or her own separate copy of the appeal book. This meant that each Judge was able to move between documents independently of what was displayed on the monitors. A feature of the software is the facility to identify "issues" and to insert comments under the title of the relevant Issue. The software also enables the members of the Court to place "bookmarks" or annotations at various points in the transcript, the judgment and the appeal documents. The documents or relevant portions of them can also be highlighted and stored to facilitate possible inclusion in the judgment.

The Full Court delivered judgment on 30 September 1998. The Judgment of the Court was 122 pages long. In preparing the judgment, information that was quoted from the electronic appeal book was copied and incorporated into the judgment electronically, so reducing both typing time and reducing preparation time.

In August 1999, as a result of this initial success and further experience with the electronic appeal book, I directed the working group to widen the pilot scheme and recommend appropriate directions and procedures for the creation of electronic appeal books.

Between June 1998 and 30 September 2000 the Supreme Court of Western Australia has heard two electronic civil appeals using electronic transcript only, four fully electronic civil appeals, seven criminal appeals using electronic transcript only and two fully electronic criminal appeals. There are another five electronic appeals listed.

The working group has thoroughly tested the electronic appeal book and sought comments from both judges and practitioners who have been involved, both in the Court and outside. The Working Party has been delighted with the feedback it has received. It is considered this feedback is vital to ensure the appeal book is meeting the requirements of all users.

In January 2000 the working group agreed on a set of principles for future electronic appeals. They are:

My Chambers Manager, Ms Jennifer Lazberger has prepared a separate paper dealing with the procedures followed within the Court following the lodging of a notice of appeal. It is planned to include on the Supreme Court’s Internet Home Page by the end of this year details regarding the e-Appeal Project, a sample appeal book, standards for the delivery of the electronic material and the standard directions made to facilitate the preparation of the e-Appeal Book, including a template. The template will enable law firms and service providers to compile their electronic appeal books in house and then lodge it at the Court.

The content of the e-Appeal book will be settled by an appropriately trained Registrar and the relevant Court files identified with a distinctive "e-Appeal" sticker. In due course the electronic appeal book will be "filed" and copies loaded on to the laptops or notebooks of the Judges, Associates and Secretaries, who will be involved in the hearing of the appeal and the preparation of reasons for judgment. Hard copy of all or any part of the materials can be supplied to any Judge if required.

There is a detailed plan and allocation of responsibilities for setting up the Courtroom by the team established for the hearing, one of whom is designated the e-Appeal Coordinator. The equipment must be carefully checked and tested before the hearing commences. During the course of the hearing the transcript of the proceedings is progressively loaded on to the Judges’ notebooks and courtroom equipment. The full day’s transcript will have been loaded by 5.00 pm each day. The relevant details are set out in Ms Lazberger’s paper.

I will now switch to the Hancock v Porteous electronic appeal book and take you on tour!

This case was identified as a suitable appeal to be heard electronically. The trial lasted for 16 days and produced 1,376 pages of transcript. There were 394 electronic exhibits ranging from one page to approximately 650 pages. The judgment of the trial Judge comprised 73 pages. The issues to be dealt with on the appeal concerned complex questions relating to law of restitution, resulting and constructive trusts, the law of tracing and the law relating to companies. As most of you would possibly recognise the parties involved it also dealt with a family dispute.

As you can see down the left had side of the screen are the four main components of our standard electronic appeal book which are known as a "Navigator" which allows you to move around different areas of the Appeal Book easily. The right hand side of your screen is called the "View" which lists all the documents in the manner you select.

For my part the best way to navigate the appeal book is by the use of the "Goto" facility. This is how the Associate navigates through the appeal book in Court. Click on "Goto". This displays four categories of documents to which one can go with speed. The first is the trial or appeal transcript by page number. For example type in "983" select trial transcript and "enter":

Prior to the hearing it is possible by review of the notices of appeal any notice of cross-appeal or contention to define and list the issues. For example one issue in this case could have been "Amount or value of money and assets transferred to Rose". That could be assigned a key word such as "Quantum". We can record a comment such as "Admission of $30 m" and tack on the relevant transcript extract by clicking on "Show Transcript" or the icon in the Issues screen "click to open transcript". We can then click on "Copy" and attach that transcript to the issue. Alternatively we can create a "book mark" by clicking on the "BMK’ icon such as "Admission of $30m."

The electronic appeal book also has a number of other tools. These are as follows:

As a result of experiences to date there has been nothing but plaudits from solicitors and counsel on the use of the electronic appeal book in terms of preparation for and presentation of argument on appeals. Some problems have been experienced in meeting the Court’s requirements for the form in which the material is to be delivered to the Court. There have been very substantial savings of time both in preparation and the hearing of appeals. Indexing documents is both swift and accurate. There are obvious advantages when thousands of pages of document and transcript can be carried in on laptops or notebooks. It is not necessary for trolley loads of material to be carried to and from the Court. One firm estimated that the cost savings on one appeal were $20,000. One counsel estimated a saving of a least two days preparation time by access to the material in electronic form. There has been much appreciation for the training sessions provided to Judges, Associates, Solicitors and Counsel in navigating the electronic appeal book. Some cases simply may not have been brought to trial at all but for the capacity to record the transcript and exhibits in electronic form. Each of the e-appeals so far heard has been completed in less time that was originally estimated.

Given the experience to date it is to be hoped that in the near future it will be possible for appeals to the Full Court and Court of Criminal Appeal from other Courts to be based on materials in electronic form. Finally, the ultimate goal must be to develop through the Working Party established by the Council of Chief Justices in conjunction with the AIJA’s Practice Committee on Technology Protocols to develop protocols for electronic appeal books which would enable applications for special leave and appeals to the High Court to be filed and heard on the basis of electronic appeal books.