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6.2  Powers of Courts concerning use of computerised documents


The provision of documents in computerised form is not only a matter of pre-
trial disclosure between prosecution and defence. The Court may take an active
role in encouraging or requiring the use of information technology in trials
so as to better ensure that the public interest in the effective and
expeditious conduct of complex trials is advanced. In some cases the Court may
be better informed and more aware of the possible advantages of the use of
information technology than either prosecution or defence. It may be necessary
for the effective conduct of the trial that the judge, and perhaps the jury,
should have access to documents in computerised form.

In the Rothwells prosecution, Seaman J held an administrative hearing so that
the DPP could present details of how it intended to run the technical aspects
of the case. A demonstration of the imaging system was presented, to allow any
challenges to the quality of the images to be presented, or similar
objections, to be heard. Seaman J approved the DPP's proposed approach. Olsson
J sees the capacity of the South Australian Supreme Court to have effective
pre-trial conferences as a key to ensuring effective use of information
technology in expediting trials. He envisages that protocols may be issued
concerning such matters as the format in which computerised documents shall be
provided to the Court, and when and how it is to be uploaded to the LIS
system. He envisages that the parties may only be required to provide exhibit
lists in the initial stages, but that the Court may require production of some
documents in image or full text form as further experience in dealing with
such matters is obtained, and as the LIS system develops. Bowsher proposes a
'1000-page rule' as to when this might be appropriate (see Bowsher (1990)).

Aronson has recommended that, on the model of s611A of Western Australia's
Criminal Code,

   ... trial courts should be empowered to determine any question of law
   or procedure that arises or that it is anticipated may arise in the
   trial... In addition, they should be empowered to give such directions
   as they think fit regarding issues or matters which must or should be
   resolved before trial. (Aronson (1992) Recommendation 9).
   
This additional legislative 'generalised power to give pre-trial directions'
is recommended by Aronson as a desirable improvement to the Western Australian
provision. He points out that such a provision as s611A can be used by parties
who are still preparing for trial, and in that regard is more flexible than
the present provisions in Victoria, South Australia and the Northern Territory
(Aronson (1992) p33). We recommend as follows:

   Legislation to give Courts a 'generalised power to give pre-trial
   directions' (Aronson Recommendation 9) will ensure that Courts have
   adequate powers to require the parties to use information technology
   for the efficient conduct of a trial.
                                                                        [PP88] 
While the terminology recommended by Aronson is probably broad enough to allow
judges to require the parties to provide documents to the court in
computerised form, such a requirement is novel enough to justify a specific
recommendation:

   Such powers should include explicit provision for the court to
   determine, as a matter of procedure, the form in which documents will
   be provided to the court, including any computerised form.
   


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