Please note: This paper is only a working draft. Please check with the authors if a later and more complete version is available before copying, quoting or citing it. [It never was updated. Also, unfortunately, the diagrams referred to in the paper have been lost.: GG, 1999]
In the 'AIJA Report' we made 58 Recommendations for a 'national strategy' to improve the use of information technology in complex criminal trials - but many of them were relevant to all criminal trials and civil litigation as well.
The recommendations were supported by the AIJA, and referred to other bodies for action. The recommendations, and a summary of the report, are attached. The purpose of this paper are to assess the extent to which the agenda set out in the AIJA Report has been achieved, three years later. Which elements of this agenda are still relevant, and should be pursued or revived? Which elements can now be considered wishful thinking?
According to papers by Leeuwenberg of the ASC, and by Michelle Mahoney of Lextech, presented at the Melbourne IIR Conference last week, the same four key elements that we described in 1993 are still dominant.
Overhead: 1st Version Of 4 Elements
These elements are summarised in 'Summary of the AIJA Report'.
Overhead: Integration Of The 4 Elements
The technology developed in 1991-92 by the ASC and the Rothwells Task Force in WA was the earliest Australian attempt to integrate at least three of these technologies in a large scale case. Document summaries, transcripts from witness statements, and images of exhibits were interlinked and able to be displayed on screen together, on a Unix platform.
Subsequently, the Commonwealth DPP in Sydney seemed to take the lead from about 1993, and effectively used a combination of off-the-shelf Windows applications to integrate all four of the key technologies to some extent, with interactive presentation graphics of a 'money trail' being linked to images of exhibits which proved a step in a transaction, and links from transcript to exhibits. But the integration was not complete, with no links (for example) between a step in a flow chart and the transcript of oral evidence needed to prove that step.
One are where the ASC has had an important impact is the development of 'hand-up briefs' on CD-ROM, which is 'treated almost as a public database - a common core for all participants' (Leeuwenberg (1996)). In one recent case the ASC provided 10 parties with CD-ROM copies of 150, 000 documents each. The photocopying cost would have been $1.5M.
In some cases, it would be advantageous if data such as the NSW Judicial Commission's Sentencing databases could be accessed in the courtroom.
During a hearing, the parties may need to communicate by computer with their offices or others, or access data from remote sources (such as legal databases).
It doesn't matter, because in a competitive industry it is certain that there will never be uniformity in the software users choose, and that competing products with roughly comparable features will quickly become available even if one does set the pace.
These are summarised in 'Summary of the AIJA Report', and covered standards for transcripts, image and text formats.
National advisory standards should be established as to what are the minimum facilities to be provided in such a courtroom by court administration, and which facilities are normally to be provided by the prosecution or defence in a particular trial.
National advisory standards should be established for courtroom networking and display devices, to assist compatibility of court- provided cabling, monitors and operating system with prosecution- provided and defence-provided computer facilities to be used in trials. Such standards will require review at least annually.
Unless Labor proposes to impose its preferred software suites on the States and Territories, on the entire private sector and on overseas networks as well, the Commonwealth electronic commerce system must learn to deal with diversity or become a network ghetto left behind by technological advances. Interoperability of networks, not uniformity of software, is the principle on which real-world networking must be based. The [Online Government] Council will draw up agreements on basic interoperability and interface standards, ensuring that Australians everywhere will be able to access the online resources and services of the entire nation with as much ease as possible. Wherever possible, open and non-proprietary standards will be employed. The most powerful tool yet developed for interoperability is the Internet. The Internet is currently the only standard capable of delivering anything close to the interoperability required.
A National Electronic Commons These agreements will form the basis for the creation of a National Electronic Commons, a set of standards for the seamless operation of State and Commonwealth online services. These services will reach into Australia's public libraries, schools, hospitals, cultural institutions, and eventually our homes.
However, the policy's comment that '[t]he Internet is currently the only standard capable of delivering anything close to the interoperability required' may now be correct in the area of court computerisation as well. This was not the case when we wrote our Report in 1993, when the explosive growth of the internet over the last two years could not be predicted with confidence.
The degree of standardisation and interoperability that has come in the wake of the 'internet explosion' is the single greatest change since 1993. It is yet to have much effect on courtroom technologies and litigation support in Australia.
However, everyone considering the future of court technologies, and the development of standards, needs to give serious consideration to factors such as the following:
A national coordinating body is needed to disseminate information, experience and advice concerning the use of information technology by those involved in criminal trials. All of the parties involved in the provision of court facilities and the conduct of trials should be represented on the national co- ordinating body. An Information Technology Committee (IT Committee) of the AIJA, with suitably diverse membership, would provide the appropriate representative structure for the national co- ordinating body. Subject to it obtaining sufficient funds to do so, the Australian Institute of Judicial Administration (AIJA) should act as the co- ordinating body.
The Sackville Committee's Access to Justice Report (1994) noted these developments and in its recommendation 'Action 18.5' it said
The decision of the Attorneys-General to require a national coordinating body ... should be actively pursued by the Australian Courts Departments Management Group.
However, the previous Federal Government's Justice Statement (May 1995), partly in response to the Sackville Report, did not mention the issue of information technology in trials.
ACAG did appoint a sub-committee, chaired by Victoria and with NSW playing an active part initially. It met once or twice, and each jurisdiction put together a report on what was happening in jurisdiction by jurisdiction, but nothing was done about co-ordination between jurisdictions before it ceased to meet. Participants have commented that an obsession by Courts and jurisdictions with 'protecting their patch', and a general culture that discourages inter-agency discussions, both played their part.
Apparently a similar thing happened with a meeting of law enforcement and prosecutorial agencies (and courts) from all jurisdictions, organised by the Commonwealth DPP. A participant said 'after a couple of meetings, and a lot of talk, it died'.
One of the outcomes of the failure of the ACAG approach was that some of the participants who are key AIJA members decided that it was necessary to bring all of the 'stakeholders' in court technologies together at a different level. The AIJA then obtained, from the Commonwealth Government's confiscated assets funds, funding to run a Court Information Technology Conference in 1997. The aim is to engage a consultant for up to a year before the Conference to (among other things) find what has been done in relation to any of the standards which it was recommended were needed in the 'Complex Trials' Report, and to develop a set of draft standards in advance of the Conference which might be suitable for adoption. Little progress has been made as yet.
Meanwhile, the key Commonwealth agencies, meeting under the umbrella of HOCLEA (Heads of Commonwealth Law Enforcement Agencies), which comprises the AFP, ASC, Commonwealth DPP and NCA, have made progress. A lot of the impetus is said to have come from the Commonwealth DPP, but the ASC has done much of the standard-setting particularly because of its expertise in document imaging.
Leeuwenberg (1996) comments:
The ASC has been fortunate in achieving considerable levels of agreement with the DPP on document handling and technical guidelines, and having had similar experiences with State DPPs in WA and Victoria. The area of standards should be expanded to cover further agreement on standard courtroom architecture, and on common minimum guidelines for document description.
At least this was one recommendation in the AIJA Report that has been implemented (described in 'Summary of the AIJA Report' as 'a matter of priority').
Overhead: 'Disseminating IT to US Courts'
G Greenleaf & A Mowbray 'Summary of the AIJA Report', 67 ALJ 873
G Greenleaf 'Imaging Technology on Trial - the Rothwells Case', 66 ALJ 849
Jeff Leeuwenburg 'Litigation support technology: Case management, investigation, and court presentations' - paper presented to this conference (Melbourne)
Justice Paul Seaman 'Launch of the AIJA Report', 67 ALJ 872