Review of Courts (Remote Participation) Act 2010
When should remote participation be used in criminal proceedings (Q27-29)
If detailed rules and expectations remain in an Act, the following options could be progressed:
Overview
The current law
The Act governs use of remote participation in criminal proceedings. This includes the general courts, as well as the Court Martial.
The Act distinguishes between ‘criminal procedural matters’ and ‘criminal substantive matters’ and sets out different levels of expectations for its use. The Act defines criminal procedural matters as matters that do not involve evidence, which could include first and second appearances, case review hearings, and pre-trial call-overs. Criminal substantive matters are matters that involve evidence, such as the trial.
Under the Act, there is a greater expectation that remote participation will be used in criminal procedural matters over substantive matters.
Problem or opportunity
We have identified opportunities to adjust existing rules to improve clarity and/or increase use in criminal proceedings. We discuss three options. The first two assume the existing presumption in favour of use in criminal procedural matters and higher thresholds for use in substantive matters will be carried over. These options can be progressed separately or together. The third would be progressed as a standalone option.
Click on the drop downs to read about the current law, the problem or opportunity and option(s) for change.
Issue 1: Lack of clarity about use of AVL in sentencing matters where the participant is not in custody
Current law
The Act expressly permits use of audio visual links (AVL) in sentencing matters if the participant (i.e. the defendant) is in custody, provided technology is available and a judicial officer determines that use of AVL is not contrary to the interests of justice (section 8(2)).
Problem or opportunity
There is a lack of clarity about how the Act applies to the use of AVL in sentencing hearings where the participant is not in custody. The Act does not expressly address this issue and a range of statutory interpretations can be made.
Option we are considering
Clarify that AVL may be used for the appearance of a participant in a sentencing hearing where the participant is not in custody. This would cover defendants/offenders on bail and at large. It would also enable defence lawyers and prosecutors to appear remotely at sentencing.
Judicial officers would need to consider statutory criteria before determining whether AVL use is appropriate in the particular case. When determining whether it is in the interests of justice to sentence a defendant/offender remotely, they may consider the seriousness of the offending and the need for public accountability, as well as the interests of the victim (who may wish to read their victim impact statement to the court with the defendant present). The defendant would also require access to appropriate technology.
Creating a clear legislative basis for use will increase clarity for court users, support consistency across courts, and may create benefits for participants. Benefits may include greater convenience and a reduction in costs and travel time.
However, there are significant practical difficulties and risks associated with sentencing defendants/offenders remotely. The following factors would need to be worked through:
- ensuring there is a robust system in place for serving the sentencing order on the defendant. In-person service requirements are currently satisfied by providing a copy of the sentencing order at the court registry counter following sentencing. We want to explore the viability of adopting alternative approaches, such as transferring the service responsibility to lawyers or adopting electronic service methods.
- developing processes for assessing the chance of custodial sentences (imprisonment or home detention) being imposed. We consider that use of AVL for the defendant/offender’s attendance would not likely be appropriate in these circumstances due to the severity of the sentence and risk that defendant/offenders may attempt to avoid being taken into custody.