Coordination with picture and sound
Familiarisation with equipment and processes
Order of proceedings
Administering the oath or affirmation in a video link
Attendance of a court official or another person at the overseas site
This page has been prepared as a guide to those involved in the use of video link facilities.
This protocol is based on the following:
the Federal Court of Australia 'Protocol for the use of Videoconferencing in Court Proceedings' issued in August 1999
the Compensation Court of NSW 'Protocol for the use of Video Court rooms in the Compensation Court' issued in October 1999
the Supreme Court of NSW 'Protocols & Procedures for Video & Audio Link' issued in October 2001.
The Land and Environment Court (facility located in Court 12A – level 12) is equipped with VTEL - Galaxy Video Link equipment (Speeds of 128 – 512 Kb/s). Although it is preferable for the other site to have similar equipment, a video link is usually possible even if the other site is using different equipment.
A distinguishing feature of the video link facility within this court is the 'automated video follow audio' system. With this system, the cameras focus on the person who is talking. Microphones are set up at the bench, the bar table and at the witness box.
There are millisecond delays between receipt of picture and receipt of the accompanying sound. This is the case even with the most advanced Integrated Services Digital Network (ISDN) communication.
This time gap needs to be appreciated. If due allowance in not made for it, there is a tendency to 'speak over' the person whose voice continues to be heard for a millisecond or so after speaking has finished from the video image.
Generally, where allowance is made for this, the speakers can quickly reach an understanding where neither is aware that a gap exists.
It is recommended that all participants to a video link call should arrive at their respective video link venues about 20 minutes prior to the transmission commencing.
It is suggested that the person appearing via video link be informed before the transmission commences of the names of the judicial officer and counsel involved.
It is less likely for the witness to be confused if practices are explained beforehand, for example, taking an oath or affirmation (which would normally be administered in the courtroom) and not responding until directed to do so by the judicial officer when an objection is taken.
The intention is that the examination of the witness at the remote location will follow as closely as possible the practice that would have taken place if that witness were in the Court room. A VCR recording may also be made of the transmission, subject to the consent and approval of the other party and the presiding judicial officer.
It is the responsibility of the party requesting the link to identify a suitable site at the other end of the video link transmission. Parties will be required to make application to the Court for an order to be made to use video links.
The current applicable legislation is the
Evidence (Audio and Audio-Visual Links) Act 1998. This legislation facilitates interstate and overseas audio and video links and provides criteria for the Court to use in making a direction for the use of audio and audio-visual links.
It should not be assumed that all foreign governments will agreed with their nationals being examined before a NSW judicial officer by means of video link. If there is any doubt, the party requesting the video link should make the appropriate enquiries of the Department of Foreign Affairs and Trade, Canberra, to ensure that the particular country raises no objection at diplomatic level to an examination being held.
There are no difficulties with either the voluntary giving of evidence in non-criminal matters or the admission of oaths in New Zealand, the United Kingdom or the United States of America.
In the UK, the
Oaths and Evidence (Overseas Authorities and Countries) Act 1963 provides: 'Any person appointed by a court or other judicial authority of any foreign country shall have power in the United Kingdom to administer oaths for the purpose of taking evidence for use in proceedings, not being criminal proceedings carried on under the law of that country.'
In the U.S.A., 28 U.S.C. §1782(b) provides: 'This chapter does not preclude a person within the United States from voluntarily giving his testimony or his statement, or producing a document or other thing, for use in a proceedings in a foreign or international tribunal before any person and in any manner acceptable to him.'
In relation to New Zealand, complementary legislation has been enacted by both governments, namely:
The Evidence Amendment Act 1994
Trans-Tasman Proceedings Act 2010 (Australia)
The New Zealand
Evidence Amendment Act 1994 provides that an Australian Court may, for the purpose of obtaining the evidence of a person in New Zealand by video link or telephone conference, administer and oath or affirmation in accordance with the practice and procedure of the Court (s 29(1)). The Act also allows reciprocal arrangements to apply. Similar provisions are contained in the complementary Australian legislation which applies to the NSW Supreme Court.
Where it is desired to take evidence from witnesses located in other countries, it is the responsibility of the party seeking the video link to ensure that there is no impediment to the taking of evidence via video link from the country concerned.
It is suggested that the party be advised to determine this matter for some or all of the following means.
By contacting the Department of Foreign Affairs and Trade (DFAT) to seek advice and or assistance in obtaining permission for the taking of evidence via video link.
By arranging with a contact in the country concerned to determine the position of that country’s government in relation to this question.
By undertaking your own research into this question.
Particular countries may have a requirement that any oath or affirmation to be taken by a witness accords with local custom, and not the usual form of oath or affirmation taken in Australia. It is necessary for this requirements to be addressed in the event that some unforeseen consequences flow from the evidence being adduced from the foreign national (or even an Australian national resident in that country).
Again, the Department of Foreign Affairs and Trade can advise of each country’s requirements, although the parties can also arrange for this information to be obtained directly through an overseas contact, such as a law firm acting on their behalf.
When considering an overseas video link, there are a number of matters to be attended to at the location of the witness, whether this is a court room, a conference room or a commercial studio.
The first requirement is to consider who needs to be in attendance with the witness, for example:
There are advantages in having another person in attendance with the witness, for example, a court official, an attorney or some other agreed person. This person could perform activities such as:
You will need to identify the day and time at the overseas location as at the date of the proposed transmission, taking into account possible time changes in both the overseas country and Australia (note the various daylight saving time zones and dates).
The requesting party or organisation is required to pay:
The cost of using the facilities will be borne by the party arranging the video or audio link and call charges are invoiced directly back to the party who books the audio conference.
Of course, in most cases these charges will be significantly less than the costs associated in bringing witnesses from intrastate, interstate and overseas.
The use of video links, in particular, will involve costs for call charges, line rental and the cost of a controller to operate equipment. Parties who elect to use the equipment will meet these expenses. It is anticipated that the cost effectiveness of the use of audio and visual links will result in many parties seeking to use the technology, rather than require their witnesses to attend court in person.
Audio links are charged accordingly to current telephone call charge rates.