CHART: A love of courtroom video links is creating fairness issues in NSW

Outside the Supreme Court of NSW. Barrister Christopher Withers (R) and an unidentified legal associate. William West/AFP/Getty Images

The rapid rise in video links for court appearances in New South Wales is hindering the ability of accused people to talk confidentially with their lawyers, according to a University of Sydney study.

The use of video to bring those on remand in jail to the courtroom has increased by more than 400% to 44,802 in 2014 from 8,605 in 2002, according to data from Corrective Services NSW and the Department of Justice.

More than 60% of court appearances in the state now happen by video link. Ten years ago most court proceedings took place with the prisoner physically in the room with their legal representative.

Carolyn McKay, in research for a Phd at the University of Sydney’s Law School, visited two NSW prisons and spoke to more than 30 prisoners.

The rise of video links in NSW. Image: University of Sydney.

The research raises concerns around procedural fairness, a key principle of the legal system which obliges courts to ensure they adopt fair procedures for each individual.

“Prisoners told me how video link is positive in avoiding the hardships of transportation to and from court,” says McKay.

“But they also expressed concerns about being reduced to ‘just a face on a screen’ or ‘a bunch of pixels’ and the potential stigma of wearing prison attire when appearing by video link.”

NSW prisoners usually appear by video link in committal proceedings, sentencing hearings, appeals and certain bail hearings.

“Prisoners felt that the lack of physical proximity with their lawyer compromised the quality of legal representation,” she says.

“Video link can mean prisoners cannot speak face-to-face to their lawyer before, during and after court matters and prisoners were very concerned about the impacts of this on confidentiality.

“The traditional whispered confidential communication in court is becoming a thing of the past for many legal procedures in NSW. Quiet asides and off the record conversations during court proceedings are difficult, if not impossible, when lawyer and client are at a distance.”

McKay recommends soundproofed video studios for better privacy and reduced background noise. Prisoners should also be given civilian clothing.