IIR Conferences - Sydney, 22-23 April 1996 - Sydney Hilton Hotel


Trial technology - A national strategy?

(Three years after the AIJA 'IT in Complex Trials' Report)

Graham Greenleaf 
Associate Professor in Law, University of New South Wales and Co-Director, AustLII 
Andrew Mowbray 
Senior Lecturer in Law, University of Technology, Sydney and Co-Director, AustLII

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]

1. The AIJA 'IT in Complex Trials' Report

In 1993 the Australian Institute of Judicial Administration published Information Technology in Complex Criminal Trials, a report it had commissioned us to produce. It is still the AIJA's top-selling Report, with the print run of 1,500 sold out. It is now out of print but is available on the internet at http://www.austlii.edu.au/au/other/col/1993/1/

 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?

2. Litigation support - approaches and standards

2.1. Four key components of integrated litigation support

First, from the perspective of 1996, what are the essential or desirable elements of successful litigation support? Have they changed?

 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'.

Integration of elements

One thing that has changed is the effective integration of these elements into effective methods of presenting a whole case.

 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.

Some good examples

There is now a proliferation of good examples of the use of information technology in prosecutions, by both Commonwealth and State agencies.

The Australian Securities Commission (ASC)

The ASC has shifted to a largely PC platform since Rothwells. In its Proimage Case it did effectively integrate presentation graphics of the 'money trail' variety with transcripts of witness statements supporting particular steps of transactions (as well as with images of documents supporting such steps). However, Leeuwenberg (1996) still identifies integration of transcript as an area that has not received consistent attention at the ASC.

 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.

The National Crime Authority - Elliott trial

Court No 12 in the Victorian Supreme Court has been rebuilt to give Victoria its first real 'electronic courtroom' for the Elliott trial. It involves CD-ROM imaging, real-time transcript, and dial-out access from the courtroom, among other technologies. Was this done solely to suit the needs of this case, or was any consideration given to standards and the needs of future trials? There is still no national body looking at these issues, as we will see.

2.2. What else is needed beyond these four technologies?

Other data needed in the courtroom

Ready access to legislation and case law is needed in the courtroom by all parties and by the judicial officer.

 In some cases, it would be advantageous if data such as the NSW Judicial Commission's Sentencing databases could be accessed in the courtroom.

Video and video conference links in the courtroom

It will often be important to have the same monitors and projection equipment that are used to display documents able to be used for display of video evidence (live or recorded) by witnesses out the jurisdiction.

Communications needs from the courtroom

The data which is used in the courtroom needs to be accessed 'out of court' by the presiding officer and by the parties. This can be achieved by providing data on CD-ROM, or (sometimes) in the case of judicial officers, by accessibility over a local area network.

 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).

Co-operation outside the courtroom

Prior to a hearing, the parties need to co-operate in various ways, particularly in the exchange of data in various forms on disk or otherwise, such as discovery lists, and image databases such as the CD-ROM 'hand-up briefs' now used by the ASC.

2.3. Standards

Can a single package deliver for everyone?

In 1993 there was not a single piece of software, or a set of products, which was capable of delivering what everyone needed for computerised litigation support. There certainly wasn't any such package available in 1993, but perhaps some software which is now available is more capable of this than then. For example, Michelle Mahoney in her IIR presentation in Melbourne last week, singles out the addition of ISYS Image with ISYS as approaching a comprehensive package.

 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.

Standards recommended in 'Complex Trials'

We recommended that a number of national standards for interchange of data between different parties to a prosecution or litigation, not uniformity of software, was the most desirable and only achievable result.

 These are summarised in 'Summary of the AIJA Report', and covered standards for transcripts, image and text formats.

Courtrooms for computers - AIJA recommendations 56-58

We also recommended standards for the computerisation of courts, as well as recommending that each jurisdiction equip at least one such courtroom (summarised in 'Summary of the AIJA Report' ):
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.

The Federal Government's ' National Electronic Commons'

In the Federal Coalition Government 1996 election policies 1996, the On Line Services Policy ('Australia Online') (http://www.liberal.org.au/POLICY/ONLINE/online.htm) had this to say about IT standards in the delivery of government services:
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.

Does the search end on the Net?

The Coalition policy does not mention the 'National Electronic Commons' reaching into the courtroom, but it should. The policy that 'basic interoperability and interface standards', not uniform software, is the only standard worth trying to achieve is much the same as we proposed.

 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:

We suggest the use of the internet and the world-wide-web will and should have a big impact on court technologies and litigation support in the next few years.

3. Coordinating and training bodies

3.1. A 'national coordinating body' and 'IT service'

A 'national coordinating body' - AIJA Recommendations 35-37

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.

Subsequent developments - ACAG, HOCLEA etc

The AIJA supported these recommendations by letter to the Standing Committee of Attorney's- General (SCAG). At a meeting of February 18 1994, SCAG accepted the Commonwealth's suggestion that the Australian Courts Departments Management was a suitable body to act as a national coordinating body. It referred the matter to them.

 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').

An IT Service - AIJA Recommendations 38-48

The Report recommended not only a coordinating body but a small technical unit for an initial period of 3 years, to promote the development and standardisation of court technologies. These recommendations are summarised in 'Summary of the AIJA Report'.

A sad comparison with the USA

It is worth remembering, as set out in the 'Complex Trials' report, that in the USA, the National Centre for State Courts and the Administrative Office of the US [Federal] Courts has been carrying out many of these functions for years.

 Overhead: 'Disseminating IT to US Courts'

3.2. Computerised moot courts, and tertiary courses

The Report envisaged that law schools had a role to play in these developments.

AIJA Recommendations 49-52

These recommendations are summarised in 'Summary of the AIJA Report'.

Subsequent developments

Not much has happened yet, but the following developments are underway: The emphasis of the AustLII approach to litigation support and courtroom technologies will be to explore delivery over the internet.


G Greenleaf & A Mowbray Recommendations from Information Technology in Complex Criminal Trials, Australian Institute of Judicial Administration, 1993

 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