AVL Protocol

(for participants in a proceeding - not for observers)

If you propose to utilise the Court's audio visual system:

• Review the AVL Protocol and AVL Guidelines;
• Discuss your request to use the AVL system with the other party(s) in the proceeding; and
• seek an order from the Court.

If an order is made allowing the use of the AVL system, that use is subject to this protocol.

Legislation

It is the responsibility of the party using the AVL system to ensure compliance with legislation and the presiding officer’s requirements.

The current applicable legislation is the Evidence (Audio and Audio-Visual Links) Act 1998. This legislation facilitates interstate and overseas audio and video links and provides criteria for the Court to use in making a direction for the use of audio and audio-visual links.

Under Section (9) of the Court Security Act 2005, photo, video and sound recording of a NSW Court proceeding is prohibited. Penalties Apply: Maximum Penalty $22,000 or 12 months imprisonment (or both).

This protocol is based on the following:

• Evidence (Audio and Audio Visual Links) Act 1998;
• the Federal Court of Australia 'eCourtroom Protocol' revised July 2024;
• the Supreme Court of NSW 'Courtroom technology operations including the Virtual Courtroom' updated July 2024.

Order of Proceedings

Court hearings conducted using the AVL system will follow as closely as possible the practice that would have taken place if the entire proceedings were in the courtroom.

The order of proceedings should be discussed between the parties, and agreed upon by the presiding officer either at a pre-trial mention or prior to the commencement of the hearing.

Witnesses and/or experts appearing by AVL should be scheduled appropriately and notified to be on standby, so that court time is not wasted.

When appearing via AVL, all Court procedures and protocols are to be followed as if you were in Court in person.

Administering and oath or affirmation by AVL

In Australia, the Court Officer in the courtroom with the Presiding Officer will administer the oath or affirmation by AVL. If the remote witness/expert wishes to take an oath, they will need to have a Bible or alternative (such as the Koran) with them when taking of the oath.

For appearances from overseas, particular countries may have a requirement that any oath or affirmation to be taken by a witness accords with local custom, and not the usual form of oath or affirmation taken in Australia. It is necessary for this requirement to be addressed in the event that some unforeseen consequences flow from the evidence being adduced from the foreign national (or an Australian national resident in that country).

The Department of Foreign Affairs and Trade can advise of each country’s requirements, although the parties can also arrange for this information to be obtained directly through an overseas contact, such as a law firm acting on their behalf.

AVL appearances from Overseas

It should not be assumed that all foreign governments will agree with their citizens being examined before a NSW judicial officer by means of AVL. If there is any doubt, the party requesting the AVL should make the appropriate enquiries of the Department of Foreign Affairs and Trade, Canberra, to ensure that the country raises no objection at diplomatic level to an examination being held.

Where it is desired to take evidence from witnesses located in other countries, it is the responsibility of the party seeking to use AVL to ensure that there is no impediment to the taking of evidence by AVL from the country concerned by:

• contacting the Department of Foreign Affairs and Trade (DFAT) to seek advice and or assistance in obtaining permission for the taking of evidence by AVL.
• arranging with a contact in the country concerned to determine the position of that country’s government in relation to this question.
• undertaking its own research into this question.

New Zealand, United Kingdom and the United State of America

There are no difficulties with either the voluntary giving of evidence in non-criminal matters or the admission of oaths in New Zealand, the United Kingdom or the United States of America.

In the UK, the Oaths and Evidence (Overseas Authorities and Countries) Act 1963 provides: 'Any person appointed by a court or other judicial authority of any foreign country shall have power in the United Kingdom to administer oaths for the purpose of taking evidence for use in proceedings, not being criminal proceedings carried on under the law of that country.'

In the U.S.A., 28 U.S.C. §1782(b) provides: 'This chapter does not preclude a person within the United States from voluntarily giving his testimony or his statement, or producing a document or other thing, for use in a proceedings in a foreign or international tribunal before any person and in any manner acceptable to him.'

In relation to New Zealand, complementary legislation has been enacted by both governments, namely:

• The Evidence Amendment Act 1994 [New Zealand]
• Trans-Tasman Proceedings Act 2010 [Australia]

The New Zealand Evidence Amendment Act 1994 provides that an Australian Court may, for the purpose of obtaining the evidence of a person in New Zealand by video link or telephone conference, administer and oath or affirmation in accordance with the practice and procedure of the Court (s 29(1)). The Act also allows reciprocal arrangements to apply. Similar provisions are contained in the complementary Australian legislation which applies to the NSW Supreme Court.

Attendance of a court official or another person at the overseas site

When considering an overseas AVL appearance, there are a number of matters to be attended to at the location of the witness, whether this is a court room, a conference room or a commercial studio.

The first requirement is to consider who needs to be in attendance with the witness, for example:

• An official from a local court;
• Another person acceptable to the Court; or
• No one.

There are advantages in having another person in attendance with the witness, for example, a court official, an attorney or some other agreed person. This person may perform activities such as:

• administering the oath or affirmation (if authorised to do so);
• assist the Court (for example, assisting the witness with papers);
• ensuring that the witness does not receive any unauthorised assistance.