What has been the fate of open justice during a time of closed courts? … Remote access for reporters … Technical issues … Costumes and clothes … Freezing video links … Wrong names … Twiddling of thumbs … Smooth operators at the Fed … Nail bars, beauty salons and courts slowly open their doors, yet e-justice is here to stay … Janek Drevikovsky explores 

The silks and solicitors, the prisoners in the dock – they all need an admiring public. It’s the court reporter’s duty to ensure the groundlings get a look in. 

Justice must be seen to be performed, or something like that.  

But then the coronavirus came and physical courtrooms were abstracted away into the Zoom-o-sphere and the virtual became a new sort of normal. 

There are announcements that by next week in-person hearings will get a jittery start – see here and here. Nonetheless, pundits suggest at least some e-justice is here to stay. 

For the humble court reporter, how does the new world it stack up to the old? Is justice more or less open in the age of the virus? Which courts do it well, which don’t? 

To find out, your correspondent selected three proceedings in different courts to test how the machinery of justice functioned in its remote phase. 

So read on, as your reporter goes gonzo.  

Getting Access

“The usual concept of open justice is applicable to the Virtual Courtrooms,” the Supreme Court’s website declares. But  there’s no word on how exactly gremlins of the press can slip their way into an e-hearing.

Enquiries were made, and a Supreme Court spokesperson made it clear that reporters must email the court’s media manager, applying for a remote access link. Then, the presiding officer will review the application. 

On the “rare occasions” an application is denied, the spokesperson said, it’s usually because the presence of a media hack would clog the network, preventing parties from attending to their own matters. 

Armed with this knowledge, I made my application. Since the news never sleeps, I emailed the media officer at midnight on a Saturday. 

The matter I selected, which concerned the breach of a non-disparagement clause, was slated for first thing the following Monday. 

Would the presiding officer review my application in time? Do judges work at the weekend? What about court media managers? I was on tenterhooks. 

The tech

The media officer sent me a link to join a video conference. When I clicked it, my internet browser automatically loaded a video app called Cisco Meeting App.

The whole thing was dolled-up with NSW gov. branding with a luscious-looking Waratah in the background. 

Dutifully, I muted my microphone, switched off my camera and joined the meeting. 

The proceedings 

Justice Adams presided from courtroom 9A, robing for the occasion. Counsel were in business dress. 

Sandy Dawson SC, for the defendant, made his appearance from what seemed to be a home office, sitting in front of a charming stained glass window.

One of the solicitors was late for the meeting. Her Honour instructed his barrister to text a reminder. 

The full colour and motion of the affair was, for this reporter at least, short-lived. After a few more observers joined the virtual court, the video feed froze. It stayed that way. 

For the next two hours, an action-shot of her Honour, mouth open, was plastered onto my computer screen – although the audio was intact. 

Before the proceedings began proper, the judge asked if the parties objected to the presence of a slimy media toad. 

I took it as a compliment when no objections were raised. 

The rest of the matter went smoothly – more or less. At one point, Justice Adams realised she had been calling Mitchell Davis, of counsel, “Mr Mitchell” rather than “Mr Davis”. 

Her red-faced Honour interrupted submissions by Tim Rogan, for the plaintiff, to make an apology. Rogan remarked: 

“It was an understandable error, your Honour. As long as you do not start calling me Sandy, we will be alright.”

Getting Access

Again, I sent off my email late on a Saturday night, applying to observe a Downing Centre Dizzo matter the following Monday. 

As soon as I hit send, an auto-generated reply was flung into the inbox: 

“[P]lease submit these [requests] at a minimum a full sitting day ahead of your hearing of interest … For Monday hearings this means by early Friday.”

Things were looking grim. I kept up hope, praying that the media manager might work wonders, as the Supreme Court manager had done. It was not to be. I never heard back about my request.

So I went in for round two. 

Getting Access and the Tech

This time, I selected a criminal matter, a sentencing hearing at the Parramatta Dizzo. 

I emailed a respectable 25 hours in advance and, praise be, my request was approved. 

The sole option for observers was by video link. The matter was set to begin at 9.30, so (with typical punctuality) I began logging in at about 9.31. 

Imagine my dismay when, rather than loading into the browser like the Supreme Court’s software, there was a whole download rigmarole I had to follow.  

Data packages were arrayed and a new app was installed onto my computer. Again, the software was made by American tech giant Cisco, but this time it was an app called “Jabber”. 

The proceedings

As it turned out, there was no reason to worry about my tardiness. For the next 20 minutes, I sat twiddling my thumbs in a judge-less e-court – apparently, the matter had been pushed back to 10.00. 

Equally bored were the two court officers in attendance, whose every word of water cooler chatter was picked up by the microphone. 

“I don’t like – what’s it called – elastic on the waistband,” said the other. 

Eventually, the parties took their position. The prisoner was linked in from Kempsey gaol and his barrister appeared in full robes and wig. 

Then her Honour processed in, wearing her purple sash and scarlet trim. The full majesty of the law, Jabber App’d for the world to see. 

Alas, there were technical difficulties. Madame Crown’s microphone wasn’t doing the job and twice the judge told her it sounded like she was “underwater”. 

Matter: Merity v Nationwide News 
Judge: Justice Michael Wigney 
Video conferencing app: Microsoft Teams 

Getting Access and the Tech

Over at the Feds, tech-savvy is the name of the game. It’s part of their agile and innovative law delivery model, maximising justice dividends (and court fees) like never before.

So it was no surprise that slipping into a virtual hearing was easy. 

Every day, the court website publishes the list of cases to be heard in every capital city. Next to each listing is a number to call or an address to email if a “member of the public” wishes to observe. 

Usually, all that’s needed is an email to the judge’s associate. Unlike in the NSW Dizzo, a 24 hour grace period is not needed; it’s enough to send through an email before 9 am or sometimes 8.30 am on the day the matter will be heard. 

So, soon after 8 am, I sent off a missive to Justice Wigney’s associate; I was rewarded with a video conferencing link for my troubles. The matter was a directions hearing in a defamation case, one of several his Honour would hear that morning. 

The Fed runs its virtual hearings on Microsoft Teams, which requires no special download. 

The proceedings 

Justice Wigney appeared from his courtroom, wearing a suit and tie only. Counsel were also in business wear. 

There was hardly a kink in the whole process. Submissions started promptly at 9.30 and everything stayed both audible and visible for the whole conference call. 

Janek Drevikovsky’s reports for Justinian are supported by the
Judith Neilson Institute for Journalism & Ideas