COVID-19, COURT HEARINGS AND AUTOMATED DECISION-MAKING

The Hon Michael Kirby QC CMC is an international jurist, educator and former judge. He served as a Deputy President of the Australian Conciliation and Arbitration Commission (1975-83); Chairman of the Australian Law Reform Commission (1975-84); Judge of the Federal Court of Australia (1983-4); President of the New South Wales Court of Appeal (1984-96); President of the Court of Appeal of Solomon Islands (1995-96) and Justice of the High Court of Australia (1996-2009). On Wednesday 19 August 2020, Michael Kirby recorded a YouTube presentation for The Sydney Institute on the courts at a time of pandemic. This was followed by a discussion with The Sydney Institute’s executive director Gerard Henderson.

COVID-19, COURT HEARINGS AND AUTOMATED DECISION-MAKING

MICHAEL KIRBY

The first report of what was later named the COVID-19 novel coronavirus was published in Wuhan, China, in November 2019 when a cluster of early manifestations of an influenza-like virus was traced to patients with connections to the Wuhan wet market.  Local authorities in Wuhan immediately tried to supress “panic” reports and to threaten whistle-blowers.  However, by the last day of 2019, China officially reported a new a-typical severe pneumonia of unknown cause to WHO.  By then, acting with stern measures and admirable speed, China posted on the internet the genetic make-up of the virus.  This helped launch a large number of global efforts to find a vaccine and a cure, not yet successful.  From this small beginning the coronavirus pandemic, later named COVID19, spread rapidly around the world.

Total confirmed cases of infection to this time have been:

Global:         22,515,213

Australia:      24,236

Total deaths

Global:         789,825

Australia:      463

Total recovered

Global:         14,381,048

Australia:      17,851

The total numbers of confirmed cases of infection and deaths in selected countries to this time include:

United States:         5,199,444 (165,617)

United Kingdom:     316,367 (41,358)

Italy:                      252,809 (35,234)

France:                   183,804 (30,223)

Spain:                    342,813 (28,617)

Russia:                   912,823 (15,498)

India:                     2,268,675 (45,257)

Coronavirus’ impact on government

In default of immediate therapeutics or an effective vaccine, WHO and local health authorities focused on the advice they could give for infection control, to reduce the spread of the COVID-19 virus.  As in the early days of HIV, this led to a close study of the modes of transmission of the virus; the identification of specially vulnerable groups exposed to infection; and the specification of precautions that should be taken to minimise the impact of the virus amongst those exposed to it.

Groups especially vulnerable to HIV included people often stigmatised in their own environments: gay men, transgender women, sex workers, injecting drug users, prisoners and other detainees.  The major target for COVID-19 containment became care for older persons; for persons in aged-care facilities; and for people travelling from places of high infection to low infection.  In Australia, and most other developed countries, legislatives and courts have been busy in response to COVID-19.

Coronavirus’ impact on judicial hearings

The 1919 encounter with the Spanish Flu demonstrates the capacity of history to repeat itself in such matters.[1]  All of the courts in Australia (from the High Court of Australia to Local and Magistrates Courts) have introduced significant procedural changes to reduce the number of ordinary hearings involving judicial officers, lawyers, parties and witnesses together in a traditional courtroom; to provide new procedures for hearings to be conducted by audio visual links (AVL).

In the High Court of Australia, after late March 2020, the Court has conducted all its hearings using AVL technology to reduce the risks of infection arising from close proximity to those who have been infected.  The Justices have generally appeared from courtrooms in their home States.  For decades, reaching back to before my appointment in 1996, the High Court and Australia has regularly conducted special leave hearings requiring oral hearings by video link technology beamed to federal court facilities in Brisbane, Adelaide, Perth, Hobart, Darwin and occasionally Melbourne and Sydney. The High Court’s earlier experience in video hearings has prepared it for switching in the hearings of appeals, applications and special leave cases to AVL technology. Justices and practitioners quickly adapt to this new technology.

Federal Court of Australia: Similar arrangements governing hearings during COVID-19 have been adopted by the Federal Court of Australia.  It already has excellent video conference facilities used for occasional hearings and also for the frequent internal conferences of the judges inter se.  By mid-March 2020, in response to the pandemic, the Federal Court started conducting hearings remotely using the technology of Microsoft Teams.  On 31 March 2020, Chief Justice Allsop published a Special Measures Information Note, outlining the Court’s response to COVID-19 and the ways in which the Court had modified its practices and procedures in order to minimise in-person attendance at court premises.[2]

Since mid-April 2020, the Federal Court has been operating at 80 per cent of its courtroom capacity.  This has largely been because of its adoption of Microsoft Teams technology for judicial hearings.  The only matters that are not presently proceeding by Microsoft Teams before the Federal Court are those involving self-represented litigants who are unable to use Microsoft Teams or certain matters that are deemed to involve security risks that must be heard in person.

State Courts of Appeal: In the highest courts of the States and Territories of Australia similar arrangements have been made, with remarkable speed and adaptation.  A recent case in the NSW Court of Appeal concerning an alleged jurisdictional error was heard by a bench comprising three Judges of Appeal.  The presiding judge was sitting alone in a courtroom.  The second judge participated from his chambers.  The venue of the third judge was not announced but may also have been his chambers.  The two judges participating remotely were dressed in lounge suits. Counsel participated from his solicitor’s office in a Sydney suburb.  His opponent participated from a public lawyer’s office.  The only problem arose when the connection with the AVL technology dropped out periodically.  As well there was episodic electronic interference during the hearing.

By contrast, a recent criminal appeal before the NSW Court of Criminal Appeal took place from the Sydney Banco Court.  All three participating judges were sitting together in full judicial dress in the same courtroom.  Barristers on both sides appeared by AVL technology linked to the Banco Court. Like the judges, the advocates on this occasion were wigged and gowned online.

UK Supreme Court:  Changes to remote court hearing arrangements during the COVID-19 pandemic are by no means confined to Australian courts.  The Supreme Court of the United Kingdom and the Judicial Committee of the Privy Council (JCPC) held their last physical hearings in a traditional courtroom in March 2020.  Where a matter is listed for a day, as is common, four separate video meetings are potentially arranged. These allow for separate video meetings for the participating justices alone before and after the main hearing.  There are also a morning and afternoon session for the hearing linking the participating judges, advocates, parties and court officers provided with access to live streaming.[3]

Adapting to AVL:  It follows that most appellate courts of our tradition in Australia and elsewhere have adapted quite rapidly to AVL technology.  Similarly, courts undertaking trials in civil jurisdiction before single judges, sitting alone, have also adapted.  Most such trials are now proceeding remotely.  Problems reportedly arise (1) from occasional technical interruptions to visual images; (2) from difficulties in access for the public and interested persons, so as to uphold the principle of openness of judicial proceedings; (3) from the viewpoint of prisoners having access in some cases from prison; (4) from the availability of the images of all of the judges participating on screen in multimember courts; and (5) from the complaints of some advocates that remote hearings appear to diminish the impact of their oral persuasion and that participating by AVL technology adds noticeably to the fatigue normal after long periods of concentration in physical courtroom settings.

Pre & post COVID-19 inefficiencies

Hayne Critique: The law and judicial procedures are always under scrutiny, a desirable characteristic that public hearings are supposed to encourage. This scrutiny did not begin with COVID-19.  However, some of the innovations introduced to permit distance hearings seem bound to continue and indeed to expand as a result of COVID-19 adaptations.

Before AVL technology came to be available, a knowledgeable critic and former Justice of the High Court of Australia, Hon. Kenneth Hayne, published a critical article enumerating what he saw as the causes for widespread dissatisfaction with the Australian judicial system.[4]  He identified “time and cost” as lying at the heart of dissatisfaction with the present judicial system. Justice Hayne propounded a number of changes to judicial practice that would save time and cost: (1) the encouragement for writing shorter reasons for judgment; (2) the restoration of judicial primacy for bringing disputes to trial rather than to ‘judicial management’;  (3) limiting discovery orders for the production of huge masses of photocopied or electronic material; (4) limiting the tender of expert evidence; (5) fixing or capping some costs; (6) and deterring and even penalising the ever increasing attitude to ‘leave no stone unturned’. This attitude adds greatly to the size, duration and costs of contemporary litigation at a marginal cost that often exceeds the marginal utility.[5]

Susskind Critique:  A leading proponent of turning the post-COVID-19 hearing process into a fresh model for future litigation is Professor Richard Susskind OBE.  He is the chief advisor on technology to the judiciary of the United Kingdom.  He can draw on an unequalled familiarity with the relevant technology now available to the courts.  He is President of the Society of Computers and the Law of the United Kingdom.  He detects a greater willingness amongst judges, officials, lawyers and court users to undertake judicial and court work in ways very differently in the future when compared to the ways of the past.

In a review article on remote courts, Richard Susskind identifies three long-standing challenges, presented by the traditional way litigation has been conducted in common law countries and also direct challenges arising out of the nature of the COVID-19 virus.[6]   The first challenge, immediately presented by the pandemic, was to maintain a sufficient level of service to the legal profession and the public whilst the traditional court facilities were closed.  The second challenge was to find new ways to tackle the backlog accumulating during the pandemic because of limited acceptable facilities.  The third challenge was, as he put it:[7]

… The longstanding one [which] flows from an alarming truth – that even in justice systems that we regard as the most advanced, dispute resolution in the public courts generally takes too long, costs too much and the process is unintelligible to all but lawyers… [This is] the “access to justice problem”. Lawyers everywhere should be ashamed of these impediments.

To deliver a more speedy, accessible, understandable and inexpensive access to justice, Richard Susskind urges: (1) permanent adoption of remote courts in as many circumstances as possible; (2) availability of video hearings, times and places beyond the hours of 10am to 4pm usual for conventional courts; (3) improvement of the AVL technology to ensure uninterrupted, congenial, accessible and multi-image visuals to bring satisfaction to all engaged in the new process; and (4) introduction of the broader concept of online courts with radically simplified “decision trees” and “diagnostic systems” that can help court users, especially those who are self-represented, to understand their entitlements and obligations (if any), to formulate their arguments, and, where appropriate, to settle their differences not as a “private sector offering but as an integral part of the public court service.”[8]

According to Professor Susskind, the judiciary of the future would be kept to more complex matters or those not suitable to more informal online procedures that he suggests as the more economical and user friendly first ports of call. Professor Susskind is not unaware that ideas advocating such radical reforms would probably quickly attract powerful opponents. He says: ^[9]

The door has opened [following COVID-19] if only slightly at this stage, to very different ways of resolving disputes.  But the winds of conservatism blow briskly through the legal world, and I am aware that many judges and litigators are hankering after a complete return to physical courts.  The status quo may serve the wealthy well enough; but it is lamentably inaccessible to the majority of individuals and organisations.

Reform and issues to address

Systematic reform: My earlier experience (1975-84) as inaugural chairman of the Australian Law Reform Commission (ALRC) taught me to be open minded about reform, including radical procedural reform.  For most people, even moderately well off, the option of engaging in civil litigation in Australia today is so risky, uncertain and expensive, that all but the foolhardy will abandon the prospect.  Certainly they will do so after putting a toe in the water and discovering the horrendous costs they will face if they go ahead to uphold a legal right given to them in legislation or in the books of the common law and fail.  So Professor Susskind is definitely onto a most significant and justifiable critique of our legal system.

There was, however, always an alternative system of legal decision-making on offer.  This was the system devised after the French Revolution and codified in France, initially by Napoleon’s codifiers.  The legal tradition of France put much more power and functionality in the inquisitorial judge.  He or she would not have the same very high professional and social status as the neutral English judge who was empowered to make the ever-expanding rules of the common law. The civil law judge was just a worker in the engine room running a very different (inquisitorial) trial system not the cost-intensive adversarial system of the common law. This alternative system had special problems, from the point of view of common lawyers, for criminal trials.  But there are undoubted advantages in the case of non-criminal trials and especially in cases where the litigant has not secured representation by a trained advocate.

A senior German judge who visited Australia in the 1980s told an Australian judicial conference that we had inherited from Britain a “Rolls Royce system” of justice.  Germany had no more than a “Volkswagen” system, adapted from France and other countries of Europe. But the German jurist asked:  How many citizens can afford a “Rolls Royce” and how many can afford a “Volkswagen”? ^[10]

Nevertheless, history, including the ill-reputed Court of Star Chamber (1487-1640), left an indelible mark on the memory of English-speaking people.   They preferred their judges to be as neutral as possible and independent from the executive. They saw serious dangers of bias in mixing up executive and judicial functions.  They did not like the idea of inquisitorial trials.

Federal necessities:  In the federal systems of government that sprang up as the British Empire began to recede in dominion,^[11] the judiciary was entrusted with the large power of neutral decision-making in contests between the constitutional players.  This is why the idea of going back to the drawing boards and completely redrafting the arrangements for public institutions identified as “courts” present special difficulties for us in countries operating under written constitutions. Written constitutions tend to be, in part at least, rigid. Courts cannot usually be converted into a mass production. It is not easy to convert courts into a “helping” agency of the executive government. According to our preference, courts must be separate from the Executive.  They decide important contests by authoritative orders.  They quell disputes and contests.  As such, they exist to decide disputes authoritatively; they are not well designed to be helpful rather than authoritative.

In Australia, in a separate chapter of the federal Constitution called “The Judicature”, it might seem a good idea to make a lower branches of the judiciary much more user-friendly; less magisterial and more advisory; with more creative functions.

At least so far as Australia is concerned, it would be possible to create commissions or tribunals within the Executive Government that could perform functions to help litigants to resolve issues outside the courts. But generally speaking, Australians are suspicious of those who come from the government and declare that they are here “to help us”.  Moreover, experience has taught that tribunals and commissions are rarely as helpful or cost conscious as their originators hope.

In the aftermath of COVID-19 I see no difficulty in courts of the common law tradition, including in federal constitutional settings, continuing to use audio visual technology to supplement or replace the attendance in a regular courtroom by proceeding in virtual courtrooms. They may do this by technologically linking different venues by telephone or audio visual technology such as Microsoft Teams or Zoom, so long as this is compatible with the mode of trial concerned.

However, it would, in my view, be a mistake to exaggerate the importance of introducing AVL technology to courts. Or to overstate the willingness that adopting such a change suggests for the adoption of other truly radical elements at the core of traditional courts and their procedures.   Essentially the embrace of AVL technology and virtual courtrooms address the first two of Professor Susskind’s challenges:  substituting digital for traditional court hearings and tackling the initial backlogs occasioned by the advent of COVID-19. Of themselves, however, as presently organised, the changes we have already adopted would not have much impact on Professor Susskind’s third challenge concerning access to justice. It would present to Australian courts no major constitutional challenge that I can foresee.   However, there are at least three further problems that may need to be addressed in giving effect to Professor Susskind’s more radical proposals.  Potentially, they travel far beyond distance transmission of communications.  So I turn to those challenges:

Courthouse and community:  In the tradition of the common law, it is generally extremely difficult to persuade judges to close courts; to limit attendance of people who wish to see them at work; to limit access to particular parts of the evidence or argument; to proscribe reportage of proceedings; or to restrict access to the transcript of reasons.[12] Understandably, many citizens and public media are sensitive to the proliferation of control orders or prohibitions on reportage of what goes on in resolving legal disputes.^[13]

Although, today, communities can be informed about court trials through electronic media, the internet and social networks, these reports tend to be selective or lost in the huge mass of online material available today.

Having to lodge an application for access to an electronic record of a court case is an impediment to general public access. In Soviet Russia, there were no telephone books. Requesting a telephone number for contact was the first step towards government control over free communications between citizens. It is possible that the present limitations on public access to AVL technology will be overcome by improved technology. But bringing court resolution of significant disputes into the vicinity of the community affected, and making such court proceedings generally available to the public is a longstanding common law principle. With a traditional court facility access was, almost always, available as of right.  Interposing a need to inform a public official and to secure the requisite code to permit such access, burdens the public’s right to access to courts.  How can that be done by virtual courtrooms with the same freedom as was the case in traditional courtrooms?

Dissent and adjustment:  Another strong principle of the common law is the right and duty of judges to express dissent from the opinions of others about the content of law or about the evidence that they are called upon to apply. This is not a universal feature of civil law systems. Some Australian judges and lawyers are also not very welcoming to this idea.

In France, adhering to its view that law is entirely objective and that dissent is unacceptable because it implies the legitimacy of the influence of individual judicial opinions, the legislature has recently forbidden publication of any such analysis of trends in decisions of particular judges.^[14]

In re-ordering a nation’s court system in Australia, it is important for the reformers to remember that courtrooms in our tradition are more than factories that turn out large numbers of cheap, efficient and predictable decisions. The recent mass protests of citizens in Hong Kong that confronted the proposed substitution of security trials in the People’s Republic of China where acquittals in criminal matters are extremely rare in place of trial in Hong Kong, suggests that the Hong Kong community values elements of the inherited common law courtrooms beyond the criteria of efficiency and predictability alone.

The Mabo decision of the High Court of Australia would never have emerged from unyielding automated decision-making based on algorithms derived from 150 years of Australian and British court decisions on Indigenous land rights. Sometimes it is essential to sever the algorithms and to feed in entirely new legal principles of human rights or new anthropological understandings that challenge and vary the data received from the past.

Accusatorial trial and values: There are many particular peculiarities in the system of the common law, especially criminal law, that have developed for strong policy reasons.  They may not always be efficient in an objective sense.  However, they may have social purposes that need to be weighed before the old rules are abolished or changed.

The consequence of all these elements in our present legal system is that law reform is not a task for the faint hearted.  It requires robust and speedy attention to old ways of delivering law and justice which are shown to be seriously inefficient, prohibitively expensive or out of kilter with currently available technology.

By the same token, law reform cannot be performed successfully without a deep knowledge of our legal history; an appreciation of its values that extend beyond efficiency and cost saving; and an understanding of the role of the courtroom in the whole-of-government institutional context.

The Australian Law Reform Commission deserves congratulation for pushing its way into the issues of access to justice and technology – including the possibilities of future automated decision-making. Exceptionally, it has done so, without, at this stage, a reference from the Federal Attorney-General giving it authority to commence work on these topics.^[15]

Law reform learning from COVID-19

Professor Susskind has shown the defects of our present approach to courtrooms and judicial decision-making. Judges, lawyers and citizens need to consider the proposals he has made to go beyond the creation of virtual courtrooms by the use of AVL technology.

The COVID-19 pandemic has been a grim and frightening time for Australia and the wider world. The only substantial ray of sunlight so far has been the demonstrated willingness of Australia’s politicians to rely on, and publicly to discuss and justify, their decisions by reference to the best available expert advice.

This methodology, in dealing with a pandemic, has helped to keep Australia’s COVID-19 infection rate and mortality levels by world standards.  The same methodology in Australia, teaches judges, lawyers and policy decision-makers a lesson about the way ahead for improving the delivery of justice in our society. Explaining continuously and before the public the nature of the challenges we are confronting.  Describing transparently the technology and science that are available to tackle the problems that need to be engaged as efficiently and as successfully as possible. Fleshing out and articulating the complexities of the problems to be resolved. Admitting to mistakes and responding with flexibility to the human dimensions of reform.  And, keeping our eyes on the wider objectives of preserving human rights and human dignity, both in public and health services and the administration of justice for all. Australia has basically done well with COVID-19 because our Governments went about tackling the problem in a new way.  We need to embrace a similar methodology in tackling the delivery of justice in our society in ways more economical and efficient that the procedures of the past.

[1] Sydney morning Herald, 19 February 2019, 11; Armidale Chronicle, 19 February 1919, 4.

[2]  Federal Court of Australia, ‘Special Measures in Response to COVID-19 (SMIN-1) Special Measures Information Note’, Updated 31 March 2020; https://www.fedcourt.gov.au/law-and-practice/practice-documents/practice-notes.

[3] R Susskind, “The Future of Courts” (paper for the Center on the Legal Profession, Harvard Law School 6 The Practice (Issue 5) (2020), 2 at 8.

[4] K M Hayne, “The Australian Judicial System: Causes for Dissatisfaction” (2018) 92 ALJ 32.

[5] Id, 44-46.

[6] Susskind, above n. 20.

[7] Susskind, id, 3.

[8]  Ibid, 11.

[9] Susskind, above n. 20, 15-16.

[10]  W. Zeidler, “Evaluations of the Adversary System: As Comparison, Some Remarks on the Investigatory System of Procedure” (1981) 55 ALJ 390.

[11] In USA, 1776-90; Canada 1867; Australia 2001; India 1950; Nigeria 1960 etc.

[12] Raybos Aust Pty ltd v Jones (1985) 2 NSWLR 47 (CA); John Fairfax & Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465 (CA).

[13] I Cunliffe, “Witness K is in the Dock but Institutions Vital to Australia’s Democracy are on Trial, https://www.theguardian.com/commentisfree/2020/aug/17/witness-k-is-in-the-dock-but-institutions-vital-to-australias-democracy-are-on-trial?CMP=share_btn_link

[14] J. McGill and A. Salyzyn, “Judging by Numbers: How will Judicial Analysis Impact the Justice System and its Stakeholders?” (2021) 44:1 Dalhousie LJ (forthcoming).  The French law is LOI no. 2019-222 du 23 mars 2019 de programmation 2018-2022 et de réforme pour la justice, article 33.

[15] Australian Law Reform Commission, The Future of Law Reform: A Suggested Program of Work 2020-25 (Brisbane 2019) see “Automated Decision-making and Administrative Law”, pp 24-30.

DISCUSSION – COVID-19, COURT HEARINGS AND AUTOMATED DECISION-MAKING –MICHAEL KIRBY WITH GERARD HENDERSON

Gerard Henderson: So thanks for a stimulating address. Obviously from what you’re saying in your talk, you can see, not a benefit, but an opportunity out of COVID-19 for reform. So, let’s go through a few of those areas. Do you think it’s likely, for example, that the New South Wales Court of Appeal that you mentioned, or the High Court that you spoke about, will change? Say, in 2022, will it be doing what they were doing in 2020? Or do you think it’ll all just go back to normal?

Michael Kirby: It probably will all go back to normal. Lord Reed, the President of the United Kingdom Supreme Court, has said that distance communication has worked very well and we’re quite happy with it and we don’t mind doing it; but we’re looking forward to getting back together. That is a feature of judicial life. It’s a pretty lonely existence because you have an individual duty to resolve cases, and you have to try and reach agreement with your colleagues. The discussion and engagement with other colleagues, and talking things through with other colleagues, is easier in a normal court situation. And it is both a valuable and pleasant aspect of the judicial experience. So that will drive people back. The inherent conservatism of the law will probably also drive people back. The fact, for example, that when they sit by distance hearing in the Court of Appeal, they’ll robe up and not just sit there in mufti.

Gerard Henderson: Yes.

Michael Kirby: That’s the deep desire to try to make the thing look like a real court and remind them of the fact that it is a real court. Including to remind the judges. So it’ll be precious to go back to business as usual. But I do think people have been surprised by the value of the virtual media. I’ve been surprised by the large numbers of seminars that are now being held by Zoom and Microsoft Teams. That never happened before. Now it can happen so easily. Now it can reach out across continents to get people like Richard Susskind to take a part, that might have been rather difficult in earlier times.

So, there are real advantages in doing discussion and communication that way. Susskind is very optimistic that lawyers, having changed, they’ll change again. They’ll change further. I’m not quite so sure they’ll do that. I do think he is a bit inclined to undervalue the problems, particularly in the case of criminal trials and jury trials and particularly, for example, in the case of letting the public have access to courts. If you want to get access to a court, the list of the Federal Court has the phone number you can ring to listen to audio. But if you actually want access to the video, you have to apply to the associate of the judge who is in charge of the case. And that is an inhibition on public access that hasn’t existed up to now. And public access to scrutinise the judges whilst they are judging is a very important feature of accountability that we’ve inherited from the common law tradition.

Gerard Henderson: Go back to your initial point there and tell us about the loneliness of the long serving judge. For example, there are a couple of High Court positions coming up in a few months or so. Let’s say someone who’s a practising barrister gets that appointment or an academic gets that appointment, someone other than the existing judge. They virtually have to drop their circle of friends and contacts in the legal profession, don’t they? So then it becomes pretty lonely? Or were you able to associate with barristers and solicitors when you were on the court?

Michael Kirby: Well, it’s interesting you ask that question because there has been a tradition that a barrister is like a potential judge in waiting. And they know the rules. They will not embarrass the judge they have lunch with. In the old days, there was a common room in the Bar’s central building, Wentworth chambers, in Sydney. And all of us used to go down there at lunchtime. You might have a bowl of soup or a sandwich. But you would sit at any table. You might be sitting with a High Court judge, or a magistrate. That was a wonderful feature of life at the Bar when I was starting out. It died away in the 1980s, I think. And it doesn’t exist now. There are the restaurants nearby but there isn’t that communal life.

It’s not considered inappropriate for judges to mix with other practitioners, particularly with barristers; that does happen. I don’t want to overstate the loneliness. The loneliness is more that you’re so busy and you’re so concentrating on getting the reasons out quickly, that you tend not to find time to make a lot of contacts. And that drives you back into your family or your partner. It means you’re not having the same vigorous social life that you had before.

Of course, there are some things you can’t do. One of the rules I was told was you’re not allowed to go to a hotel, a pub. I never went to pubs anyway. So I didn’t feel that was a huge loss for me. But for some people, not going to pubs was a difficulty. So they abandoned pubs and joined clubs. Actually, they are much more likely to bump into people who are in litigation in a club than they are in a pub.

Gerard Henderson: Unless they’re in the criminal jurisdiction of course. You might find more crims in pubs than in clubs I guess.

Michael Kirby: Oh …

Gerard Henderson: You’re not sure?

Michael Kirby: I’m not sure about that. But we won’t go there. I’m not a member of any club because the clubs I would be interested in being a member of don’t admit women. That, I think, is something that is not acceptable now.

Gerard Henderson: You mentioned the criminal law, so let’s look at juries. As you know, there’s trial by judge alone in all jurisdictions in Australia except Victoria and Tasmania. They have trial by jury only. Victoria is now making exceptions because of COVID-19. Some people can make an application now to have a trial by judge alone in Victoria. The concept of trial by judge alone, is available in all Australian jurisdictions (although I am not sure about Tasmania). That eliminates the jury because the juries can’t get close to one another. In New South Wales they may continue but you know more about jury rooms than I do. I’m not sure how juries can meet in these kind of restrictions. Are you an advocate for trial by jury? Or do you see the point of trial by judge alone?

Michael Kirby: Well, I see the point of trial by judge alone. Again, if you apply an efficiency criterion, there are arguments both ways. In a trial by judge alone you don’t have to explain every step to the same degree you have to a jury. And the Judge has to give reasons; while a jury doesn’t give reasons. Therefore, you’ve got generally no immediate hook on which to hang an argument of disquiet if you feel disquiet about the outcome in a jury trial.

My brother David was a judge at the Supreme Court of New South Wales. He did wall-to-wall murder. His work in the court was very substantially big criminal trials. He was very successful at it, and very fair. He said his experience was there were only one or two cases in all the years he was doing jury trials where he thought the jury got it wrong. He thought juries were a very good mechanism for a fair conduct of the trial and fair outcomes. He thought it was very rare that they got it wrong.

Of course, from the point of view of the working judge, once you’ve given your directions to the jury, which are now to some degree in books of directions, you don’t have to go away and then write out a long judgement in which you set out the explanations. Generally, appealing against juries on the grounds of unsafe and unsatisfactory outcomes is quite a hard road to hoe. And generally, is an ingredient for finality, which many people think is one of the great advantages of jury trials.

Gerard Henderson: But your brother did concede, as Judge Weinberg did in the Court of Appeal in Victoria and Cardinal Pell, that occasionally juries get it wrong. You’re talking about two in a period of what, 20 years or something?

Michael Kirby: Yes. Well, it was about 15 years.

Gerard Henderson: 15 years.

Michael Kirby: But, of course, there are always exceptions to any general rule. I think we should not get into the mode of throwing the system out because of one or two instances which leave a sense of disquiet and which are revealed and corrected. Generally speaking, you don’t have just one person’s opinion. You have 12 persons’ opinion. Nowadays, people are better educated and they’re more inquisitive. They’re more likely to ask questions and to have the matter carefully analysed. I think our system is a pretty good system. And the jury has traditionally been a protection of liberty.

Never forget that Australia was peopled by individuals whom English juries had held had stolen something worth more than two pounds. If it was more than two pounds they’d be hanged. And many stole fine pieces of jewelry, undervalued by the jury because they thought it an unfair law. Australia has a lot of people walking around who are the descendants of people who would have not been here but for jury trial.

Gerard Henderson: So, in the current climate where jury trials have been delayed in many jurisdictions because of the difficulties of holding them, what are the rights of the accused then?

Michael Kirby: Well, it cuts both ways. There have been cases where the accused believes he/she should get bail because he/she will be hanging around in prison waiting for a trial. Yet, parliament has made it much more difficult for prisoners awaiting trial to get bail. There are some interesting cases coming up where the judges are having to balance the long-term deprivation of liberty against the risks of flight or not turning up for the trial. That, too, can sometimes be dealt with by technological means such as electronic devices that indicate where a person is, that monitor the person. However, I think the cases that are coming up in the courts are addressing issues where there’s a clash between the right to speedy trial and the delays that are caused by COVID-19.

The more fundamental problem is that it’s very difficult to have close, intimate and vigorous, and sometimes contesting, discussion. One of the problems with COVID-19, I was told by my dermatologist the other day, is that dermatologists can’t spend too much time with one person because of the risk of the droplets that might contain the virus. Therefore, if you are a dematologist, you’ve got to break down the time that you’re in another human being’s space. And that’s difficult to do in a jury trial because, however big the jury room or however big the room is that they substitute for an ordinary jury room, the dialectic is still going to be quite intimate.

Gerard Henderson: Some juries, as you know, are out for a long, long time. In some drug cases and some crime cases, they can be out for 3,4,5,6 days. It’s a long time.

Michael Kirby: They now allow juries to separate in ways that they didn’t before. When I started out in the law, it was very common for juries not to be allowed to separate. Once they have been sworn in as the jury, they had to stay together in case they picked up untested information. Today, that is a live problem with media and the internet: allowing people access to information that they haven’t got in the court room. And that is something against which judges would warn jurors. But that is a real live problem in today’s world of media and communications.

Gerard Henderson: That can’t be resolved, can it? No one takes iPhones away from jurors these days, whereas in the past, they were locked up, very briefly.

Michael Kirby: They were locked up. But then allowed to go home where their iPhone was waiting for them. Most people nowadays don’t believe that they’re alive if they don’t have their iPhone.

Gerard Henderson: Let’s take a court like the High Court or the Court of Appeal in New South Wales. It might be a criminal case, it might be a civil case, but to what extent are the judges required to do it by Zoom or by Microsoft Teams. And how often do they talk about the issues? Do they go away separately and write their own papers? Or do they coalition with one another? Do they develop arguments with each other? What’s the system that’s most likely to prevail?

Michael Kirby: The system in Australia, at least the system that I was familiar with, was that judges meet before they go into court in the first place. In a short meeting, they talk about their initial impressions of the case. They then may have lunch together or may not. They will then have a meeting at the end of the day and have a discussion.

In the High Court of Australia, because the judges didn’t necessarily live in the same state and didn’t have the advantage of being available in chambers all the time, they had a system of conferencing. That was on the Tuesday after the two-week session that you had for sittings. The High Court’s schedule was rather similar to Parliament’s. You were on for two weeks, and then off for two weeks, while you were supposed to be writing judgements. At the beginning of that period, there would be an audio visual link, a closely confined and secure link, to the chambers of the Chief Justice then in Sydney and to the judges in their chambers throughout the Commonwealth. There would be discussion about the case and discussion about who should be invited to write the first opinion.

 Gerard Henderson: So that’s there before the virus.

Michael Kirby: Yes. The High Court has really been a pathfinder in this technology. When I was on the Court of Appeal, as I was for 12 years before I went to the High Court, we never had any audio visual communication for advocacy or any such thing. But when I went to the High Court, it only took about 10 minutes to get used to it. You are beamed been to the courthouse in Adelaide where at the Bar table, the barristers wear their wigs and robes. They would get up and make their submissions. And the camera pans in and goes straight to the advocate. So, it’s very similar to the advocate being in front of you in the Canberra courtroom. Sometimes it’s even better because the audio is better and clearer. And if I became like my grandfather, a bit hard of hearing, it was actually an advantage that you could get a very clear audio and very clear visual.

Gerard Henderson: Now that’s the case with a Court of Appeal. What about a court of first instance? What about if there’s a witness? Does it matter whether the witness is coming through on video or the witness is present in the court? It might be the accused. It might be a witness.

Michael Kirby: Some judges are very traditional. My former colleague, Justice Michael McHugh, was very traditional. He said you have to be in the presence. You have to feel the atmosphere. You’ve got to know. The only problem with that theory is that there’s an lot of science that has looked at it and people cannot judge the truth telling of a witness by how impressive they are; or how they look you in the eye; or how they’re very direct. That is a complete furphy. Therefore, once you start looking at the science, you get to the point, as the High Court has in its decision in the famous decision Fox v Percy, in which the court says it’s better to have an ounce of evidence than many pounds of impression. Because impression can be wrong.

This is a problem, say, with Aboriginal witnesses. They commonly don’t like looking you in the eye. Their culture is not to look you in the eye and they speak very softly and quietly and avert their eyes. There are cultural norms in some European communities which are similar. In Asia, people generally speak to people of power with great deference. Not always, but sometimes. Therefore, some of the truths of the past need to be reexamined. I don’t think witnesses would be much of a problem. It’s interesting that in the Federal Court, which is mainly exercising civil jurisdiction, they haven’t reported any problem – 80 per cent of their trials are going ahead in a normal way with video links. The judge might be in one place and the barrister in a different place and the witness in a third place.

Gerard Henderson: So, when a judge goes away to consider a case, what you have suggested is, probably, that the transcripts have more value than an impression given either directly in a court or by video link?

Michael Kirby: I wouldn’t want to over emphasise this because you don’t have a lot of time to sit there and go through it again and again and again, looking at material. Sometimes it might be useful. I noticed that in the appeal in the High Court concerning Cardinal Pell, there was a question of whether the Court of Appeal of Victoria was wrong going to the video material which had been available of the testimony of the complainant in that case. But if material is available, and if it’s part of the record, then there’s no reason, in principle, why a judge and a jury shouldn’t be allowed to see it repeated. Including over and over again if it’s gripping or important.[i]

Gerard Henderson: I think in the Pell case in the Court of Appeal, the majority judges, two of them said we look at the complainant and the complainant is convincing, compelling and the minority judge said you look at the complainant and the complainant is not convincing. So you’re better looking at the evidence rather than getting impressions about how people sound, which I think is consistent with what you’re saying. But not so much of what Michael McHugh is saying.

Michael Kirby: The High Court has, in Fox v Percy,[ii] and in many cases since, said that nowadays witnesses will not necessarily be accepted just because they look impressive. It’s much better to put the testimony together. We had a case in the High Court – Mallard’s case[iii]. That case came up seeking special leave. The bench of three, which included Michael McHugh and me, refused special leave. Then, ten years later, they came back when Justice Edelman was Junior Counsel in the case. They argued on the basis that when you put all the evidence together. It didn’t fit. I sat on that case and offered to recuse myself. The parties said, “No, we’re quite happy for you to sit.” I was the last of the three who were still sitting returned for the second time. And the court found that it didn’t fit. Mr Mallard was not only not really proved to be guilty, he was probably actually innocent. Our search is not “is the accused innocent?”, but “has the Crown proved that the accused is guilty beyond reasonable doubt?”

Gerard Henderson: We’ll finish in a minute. But, for anyone who’s interested, that’s a Western Australian case, isn’t it?

Michael Kirby: Yes. Mr Mallard was later was knocked down on the road and killed. But at least his case came to justice in the end. It’s a case which explains the burden that a judge faces. If you have any sensitivity to think that one was guilty, 10 years earlier, of refusing special leave on the basis of the arguments that were put then, I didn’t have the benefit of the argument that was ultimately put, which was, it is not logical. It does not fit together. We cannot affirm the conviction consistent with rationality.

Gerard Henderson: Now, since your days in the Law Reform Commission, influential days, you’ve been calling for reform, with some success. Today, again, you’re suggesting further changes that could be made coming off COVID-19 in order to make trials less expensive. You make the point that most sensible people wouldn’t go into court if they knew what they were going to experience there in terms of cost or whatever. What chances are there that some of these changes you’ve been talking today will happen?

Michael Kirby: There is a good chance that they will come about. The law and the bench have reacted so positively, and they had to, because COVID-19 is passed by close communication. Therefore, they had to find a way. The technology had suddenly become available on Zoom and Teams. That made it possible. And that isn’t a big change. That’s the problem I have with Professor Susskind. He thinks because everybody went there in their wigs and robes and did it by video, that everybody now wants to change everything. Well, lawyers aren’t like that. Lawyers are very suspicious, including myself. You’ve got to make sure that you’re not changing something that is there for a really good and important purpose.

There’s no doubt that there would be cases, types of cases, cases involving government claims, claims against government departments where particular disputes are mass produced. China couldn’t cope with its population unless it had some systems for dealing with things quickly, cheaply, and maybe not perfectly. But we have to think of what we can do.

I had a case recently, personally, with a neighbour. I was purchasing a property. I found out very quickly how much it would cost if I took my very reasonable grievance to a court. The cost was totally prohibitive. I couldn’t afford it. I would have been a fool to do it. And so I didn’t. And, in the end, it was disposed of. But if that affects a well heeled gentleman like me, it certainly would affect many people. Including people who are affected by COVID, and the economic impact of the epidemic. Reform of the law must adapt not only to a pandemic. It must adapt to the costs of litigation, and the potential of new technology to reduce that cost without endangering manifest justice.

Gerard Henderson: Michael Kirby, many thanks.

ENDNOTES

[i] (2020) 94 ALJR 394; [2020] HCA 12

[ii] (2003) 214 CLR 118; [2003] HCA 118 at [30]

[iii] (2005) 224 CLR 125; [2005] HCA 68