Conducting hearings on video has become more common since the outbreak of COVID-19 as most courts and other tribunals have not been able to conduct face‑to-face hearings. Rather, they have opted for video conferencing via Zoom and other video-conferencing mediums.
Judges, barristers and solicitors had to become adept at using the various video-conferencing techniques. This hasn’t been altogether easy. There have been many technical difficulties which have been disruptive and frustrating.
However, with trial and error the skill of users has improved, making the taking of evidence and the conducting of hearings more effective than they were at the beginning.
It seems however that the success of video conferencing has apparently persuaded the Court administrators to mandate that face‑to-face hearings after COVID is just a sad memory.
In my experience the close observation of a witness’s demeanour is of paramount forensic importance for the decision maker to determine whether or not a witness’s testimony is truthful and reliable.
In my own experience as a decision maker I have found it difficult to closely observe a witness’s demeanour from a distance. I prefer to see the whitesof witnesses’ eyes during questioning.
Also I fear that taking evidence by video is open to abuse such as coaching off camera and witnesses deliberately staging technical failures such as loss of audio and vision under difficult questioning.
There is of course is a place for conducting court hearings on video, for example, if a witness lives a far distance from the court location. However, in my opinion, video-conferenced hearings should be the exception, not the norm.
Written by Tom Goudkamp OAM